FTI Consulting are presenting a webinar on structured data on Thursday 19 November at 1300 GMT. The subject is perceived by some as too difficult to talk about, but it cannot be ignored.
Elephants have provided a recurring theme throughout this blog. They are large, hard to get your arms around and difficult to describe to someone who is not familiar with them – which makes them the perfect model for the structured databases in which a very high proportion of company information resides.
E-mail, and user files like Word documents and Excel spreadsheets spring readily to the mind of a lawyer required to disclose “documents”. Sources such as HR and financial databases tend to be overlooked, largely because they usually bear little relationship to the conventional idea of a “document”. Read the rest of this entry »
Although the survey was of US companies only, the results are universal – this is not about FRCP or sanctions but about the expectation that in-house legal teams will achieve the same or more with lower budgets and fewer resources, including the spend on outside lawyers. This is happening everywhere and the conclusions are as valid in countries beyond the US. We have gone way beyond shaving down charging rates and other minor economies, and into fundamental reassessments of what is really necessary to achieve the objective.
The answers inevitably lie in a mixture of process, people and technology. The perfect model, viewed in the abstract, is that companies reserve their external lawyers for the things which they do supremely well, and keep control of as much as possible of the rest by a mixture of in-house teams and technology and by direct relationships with providers of software and services.
The primary target is to cut the cost of review by minimising the amount of data sent to the lawyers – there is much more money to be saved by reducing the lawyer hours than by trimming the charging rates. The newer generations of clustering and visualisation tools are not merely more easily understood and accurate, but deliver results which can be audited and, if necessary, re-run with different parameters. The word “repeatable” means more than being able to validate the results – if the first-pass processes are routinely done in-house, then conclusions reached last time can be re-used when similar ground has to be covered for a different case.
I have written a fair amount about this shift – lawyers must either embrace it and learn to fit into the clients’ processes, or do without the work. It will be good to have some statistical backing for what is known to be happening, and Ari Kaplan’s overview and analysis will, like the results themselves, be relevant beyond the US.
As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.
The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named. Read the rest of this entry »
What connects Father Brown’s deduction that a trusted old soldier had been a villain with Autonomy’s tracing of Jérôme Kerviel’s activities at Société Générale? Both stories involved not just hiding leaves in forests but making a forest in which to hide the leaves. Companies need to get a grip on their data.
The Times has been running a rather good series of supplements on matters relevant to business. Last week’s was on Corporate Fraud, and I and other e-Disclosure commentators were interviewed for an article called Finding a hidden leaf in a forest.
The heading is a misquotation. What I actually said in my interview was “Where does a wise man hide a leaf?”. This expression was used by Lord Justice Jacob in Nichia v Argos in his discussion about mass disclosure as opposed to the consideration of documents “with some care to decide whether they should be disclosed”. His paragraph 47 says this:
“…it is the downstream costs caused by the disclosure which so often are so substantial and so pointless. It can even be said, in cases of massive disclosure, that there is a real risk that the really important documents will get overlooked. Where does a wise man hide a leaf?” Read the rest of this entry »
A large pub gathering of most of the London litigation support industry prompts some thoughts on the state of the industry and on what makes a buyer new to the market choose one supplier rather than another
If the Larder in Clerkenwell had collapsed last night, almost the whole of the UK litigation support industry would have gone with it. Bill Onwusah of Lovells, whose idea it was, thought he was being optimistic in reckoning that 25 people might turn up in response to his invitation for “an evening of convivial conversation”. As the evening began, he revised the estimate to 45. We all lost count, but the final figure was much higher than that. What probably drew in the crowds was the rider “if you can’t manage anything convivial we will settle for an evening of the usual backbiting and sniping”. Read the rest of this entry »
My excuse, if such be needed, is that there is only one of me and that the inordinate amount of time spent on aeroplanes recently cuts into the writing time. I do not, in any event, lay claim to journalistic timeliness. Besides, as I have already noted, Patrick Burke of Guidance Software has already written up Judge Facciola’s speech and the judicial panel at the Masters Conference and now we have the PosseList’s Masters Conference wrap-up. As that makes clear, they had “various reporters” at the conference which meant they could attend sessions which ran parallel to each other. Read the rest of this entry »
I wonder what was the first legal technology development reported by Charles Christian. A new design of quill pen perhaps which, coupled with a revolutionary advance in parchment development, allowed legal clerks to write on both sides of a document at once. It might have been the outsourcing of Inner Temple deed production to monks recently made redundant by the nationalisation of the monasteries, or a steam-driven calculating machine for keeping trust accounts.
His acerbic observations on the legal technology market have been pouring out apparently for ever. His audience is legal IT professionals — the people who develop, sell, buy, implement, support and manage legal IT systems within law firms and in-house legal departments. It is unlikely that any medium-to-large law firm technology purchase in the UK has taken place without reference to the Legal Technology Insider and, more recently, the Orange Rag blog. Read the rest of this entry »
I have already written about this (see Costs penalty for non-compliance with e-disclosure obligations). It is significant at several levels: unlike Digicel it is a fairly ordinary case; it is firmly grounded in authorities about evidence and not merely about disclosure or electronic disclosure; it covers the use of disproportionately expensive lawyers as well as procedural defects; perhaps most importantly, it is a case where documentary evidence would have proved immediately what it took much oral evidence to show, possibly allowing the case to be dealt with on a summary basis. The disclosure defects did actually cost time, money and court time. Read the rest of this entry »
These posts sometimes acquire a life of their own in the writing especially where, as with this one, they are done in stages across a rather long day. What began as an account of my last day in Singapore turns into the observation that EDD quotations are like a cold beer on a hot day – if you really need it right now then you may have to pay more for it.
Up at 4.00am this morning [Friday], for no more obvious reason than that my internal clock was unsure what time zone it was in. It had probably caught up with Washington, but was actually now in Singapore – but not for much longer. I stayed awake throughout the second day of the conference (just as well really, since I was chairing it – how embarrassing would that be?) and went out for blameless suppers with Browning Marean, followed by early nights, respectably ignoring the fact that Singapore has a larger number of very beautiful girls than any city I have been in. It is probably that which has caught up with me (early nights, I mean, not being respectable). If you go to bed four hours earlier than usual then you wake up four hours earlier. Nothing to do with time zones. Read the rest of this entry »
To say that electronic discovery is international connotes more than the cross-border ramifications of multi-jurisdictional litigation. There is commonality in the problems, the rules and the solutions, to say nothing of the implications for law firms of new ways of working. The Masters Conference was an opportunity to explore many of them.
My ambition to report on the Masters Conference in Washington before reaching the LexisNexis e-discovery conference in Singapore was defeated by various things – only so many hours in the day for one thing, and no power sockets on the planes. As I begin writing this, it is 4.00am in Singapore a week later and the conference here has been and gone. Read the rest of this entry »
The subject of liberty came at me in three different ways on a single Sunday morning in Washington a few days ago. The top article in the Washington Post was headed “In today’s viral world, who keeps a civil tongue” and concerns what it referred to as “the rules of civil discourse”, specifically in relation to the freedom to say what you please. I went to the Arlington National Cemetery, and gazed on the thousands who lie buried there who fought for our freedom. My way back was blocked by a march demanding gay equality, and specifically the freedom of people of the same sex to marry. Read the rest of this entry »
Practice Direction No 3 of 2009 in the Supreme Court of Singapore is entitled Discovery and Inspection of Electronically Stored Information and took effect on 1 October 2009. I am off to Singapore today to take part in a conference organised by LexisNexis with the title e-Discovery & Digital Forensics.
My own subject, it will not surprise you to know, is International Parallels in e-Discovery. I aim to distil what has come out of the US-UK judicial panels which we have now done in both London and Washington and which have picked out what is best and worst from both jurisdictions. The words competence, co-operation and proportionality will inevitably feature in my speech as they do, expressly or by implication, in the new Practice Direction. Read the rest of this entry »
Browning Marean and I made two short videos at ILTA09 with Kina Kim of PivotalDiscovery. The “big reception” in my title refers to the venue rather than the reaction, but this means of conveying information is well worth doing.
Years ago, back in the late 1980s, I attended a video presentation course with my then law firm partners. The idea was not to prepare us to appear in moving pictures but to improve our general presentation skills by showing us where we went wrong when speaking in public. My own weakness, I discovered, lay not in how I looked when being filmed, but in what I did when I was merely in the background. I realised that I fiddled constantly, scratching imaginary itches, rubbing the side of my nose and generally moving about all the time. When I first stood in front of audiences, I had to remember to remove everything from my pockets to make sure that I did not jangle keys and coins whilst speaking.
I have kicked that last one, I think, but my most recent video appearance shows up a new bad habit – continuous hand gestures like a demented weather girl signing for the deaf whilst warning of stormy weather ahead. Read the rest of this entry »
A judgment given yesterday by His Honour Judge Simon Brown QC sitting as an Additional High Court Judge in the Birmingham Mercantile Court, will focus minds on the need to comply with the requirements of Part 31 CPR and the Practice Direction to Part 31 CPR when giving disclosure.
The case is Earles v Barclays Bank Plc in which the successful Defendant was penalised in its costs recovery after failing to observe the requirements of the disclosure rules. The judge was at pains to stress that there was no intent to conceal documents and that the omissions were the result of incorrect decisions as to the proportionality of the scope of search. The focus is not on the rules for their own sake but on the fact that if the Defendant’s disclosure had been conducted properly, then not only would much time have been saved at trial but a summary judgment application might have been successful. Read the rest of this entry »
The 2009 Masters Conference takes place in Washington on 12 and 13 October. Its title, Global Corporate Change – Navigating Discovery, Risk and Security covers only a fraction of the subjects covered in two days.
The best part for me last year, and the main reason I went, was a keynote speech by US Magistrate Judge John Facciola which I reported at length (see Leadership in Litigation). This took the debate beyond court rules and litigation technology and up into the importance of the court as a component of society. There is a direct line between competence and the efficient use of technology (on the one hand) and access to justice (on the other). Lawyers, judges, and governments which do not to make the courts accessible to everybody are not just failing their clients, the parties appearing before them or those whom they govern. Judge Facciola has the knack of making these things sound not just worthy sentiments but objectives directly related to our daily work.
What makes this job interesting is the breadth, from the minutiae of data handling to matters of state policy. There is almost no corner of the field which is not touched on in the course of the two day conference. If I pick out just the sessions from the program on the entirely random basis that I know the speakers, that is enough to give you the flavour of it. Read the rest of this entry »
I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.
Patrick Burke and Judge Peck
We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about. Read the rest of this entry »
I got back late on Thursday from IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels. I was on three panels on the first day, attended several others, met or re-met countless people, and yet seemed in retrospect to have spent most of the time eating and drinking. You will forgive me if this post deals with impressions rather than detail.
It is hard to convey how enjoyable these conferences can be. The concentration of raw information and informed comment into two days is not incompatible with having a good time. No one goes just for the pleasurable side, but you do not need to be an information management junkie to enjoy it, whether in the session rooms, in the networking breaks between formal sessions, and in the restaurants and bars afterwards.
Chris Dale at IQPC Brussels
I will write about some of the sessions separately, and this post is just an overview to give a broad impression for those who have not yet attended one of these conferences. IQPC do them better than most, and months of serious planning goes into them. Of course, if your company has no electronic documents or if your litigation department clients foresee no need to sue, and no risk of being sued or being visited by a regulator, then an e-disclosure conference is not for you. For anyone else, it is a cost-effective way of catching up with what is going on, in pleasant surroundings and congenial company. If part of the appeal is hearing from those who do know about the subject – the legal, practical and technological aspects – another, and under-rated, aspect is the opportunity to mix with those whose knowledge, or lack of it, is no higher than your own. Read the rest of this entry »
I do not pretend that this job is hard work in the way that trying to reach a sales target or managing a large project is hard work. It is far too enjoyable for that. It would, however, be good if all these interesting things could be spread out more evenly across the year.
Did I really agree to deliver 10,000 words for a book chapter on digital evidence by 1 October? Did that have to coincide with finishing off two white papers? Why do all the conferences end up bunched together (three conferences in three continents in three weeks starting this week in Brussels)? Are the Twitter eDiscovery lists always so full of interesting stories to follow up, or have I joined in at a particularly interesting point? I could write ten stories a day entirely from the leads on there alone – but for the book, white papers and the conferences, that is. Read the rest of this entry »
I am fond of analogies, as you know, and everything from motorway signs to Roman bridges gets pulled into service to illustrate e-disclosure points. It seems to be catching: Craig Earnshaw of FTI Technology in London came up with another when I was speaking to him a few days ago.
I often make the point that suppliers’ inevitable focus on their bigger cases tends to obscure their willingness and ability to work cost-effectively on smaller matters. They have only one home page on their website and it is not surprising that they use it to promote the higher end of their range.
It is like introducing people to opera, Craig said. You do not encourage newcomers to sit through the Ring Cycle, but introduce them more gently with Puccini.
It is a good parallel, embracing the sophistication, if that is the right word, of Wagner, the endurance needed to absorb it, the scale and the technical appreciation required. Most electronic disclosure cases are not that big or that sophisticated, and do not require of the user that he or she is deeply knowledgeable about the technology. The challenge of getting someone to attend their first opera is akin to the challenge of getting lawyers to undertake their first e-disclosure exercise. Read the rest of this entry »
Most broad ideas of the characteristics which identify people from other races and cultures contain a grain of truth as well as a dollop of unfairness. The excitable French, stoic Britons and [supply your own words here] Irish turn up in a story in the Sunday Times travel supplement.
An Aer Lingus plane is approaching Paris on a flight from London. An announcement is made in French and in English. The French get into a tremendous flap with (I embellish here somewhat) much “Zut alors!”, “Sacred blue!”, “Where is the pen of my aunt?”and all the other expressions of excitement which we associate with the Gallic nature. The Britons, meanwhile, sit calmly, with what appears to the French as a degree of sang-froid quite inappropriate to the circumstances, whatever they had heard about British stoicism.
It transpires that the cabin crew have got the tapes muddled up. English-speaking passengers were merely advised to return to their seats and fasten their safety belts. The French, however, were told to prepare for an emergency landing, to note where the emergency exits were, and to await instructions from the captain.
Stories of such mutual incomprehension and cultural stereotypes turn up from time to time in the context of foreign data collections (where the standard advice, of course, includes the suggestion that you refrain from calling your hosts’ language “foreign”). Data collection experts instructed by a US law firm went to a subsidiary company abroad to collect evidence for litigation, with the understanding that the culture of the country was that staff were immensely loyal. The collectors were puzzled to find that they were obstructed at every turn, and it took a long time to discover that whatever they had said on their arrival had been interpreted as meaning that the subsidiary’s senior management was under investigation. The employees were just being immensely loyal – exactly as the lawyers had been told they would be.
Disappointingly, there is little new in the Opinion nor (despite my initial excitement) did I really expect there to be. Proskauer Rose supplies a helpful summary and, even more usefully, a link to a translation of the Opinion
If we cannot have something new, at least it is good to have a reasonably clear statement of what the existing position is. Since neither France nor any other EU country is likely to relax its requirements (on the contrary, the general drift is in the other direction) it is as well that US courts and lawyers have the clearest possible statement of what the restrictions are and what can be done within them to meet, as far as possible, the requirements of a US court or authority. Leaving aside the detailed definitions and regulations, which you can read for yourself, the main message is that quite a lot can be achieved by, for example, anonymising data and some serious filtering. Read the rest of this entry »
The programme for the Masters Conference in Washington on 13 and 14 October is now published. It looks set to be even better than last year’s, even if you ignore my own small part in it. I will come back to that in a separate post.
More imminently, on 24 September, the Masters Conference is running a webinar given by the well-known e-discovery consultant, Tom O’Connor. Tom’s subject is Top 10 tips for Working with E-Discovery. The ten tips are the ones which Tom gives to his clients at their first meeting and should be well worth listening to.
The webinar takes place between 12.00 and 1:00 PM EDT (5:00 PM BST) and you can register for it here. The advertised context is US state and federal rules, but my experience of listening to Tom (which I do about once a fortnight) is that he has a large measure of sensible advice which travels well across borders.
In electronic disclosure as in everything else, the technology itself is unlikely to cause the problems. For the moment at least, it needs direction from human intelligence. Money spent on equipment is wasted if not supported by a brain cell or two and some project management skills.
The information boards which are spreading along Britain’s motorways are a good example of technology applied to a useful, everyday purpose. They give the ability to forewarn drivers of danger or delay ahead so that they can slow down, plan a diversion or whatever. You can now even see what the notices say from the website at TrafficEngland – I guess it is technically quite simple to repeat the information there but that makes it no less useful and it seems very clever even if, as my picture shows, half of them merely consist of nannying advice – there are few things quite so annoying as getting unsolicited advice from people you despise. Read the rest of this entry »
A director who destroyed documents in anticipation of a government investigation may not be subject to any penalty for the bare act of destruction divorced from any actual proceedings against him or his company. If that is indeed the position, there will be calls to change it. Bad cases make bad law.
I will not try and make sense for you of the story of how the Phoenix consortium acquired carmaker MG Rover for £10 in 2000, departing five years later as millionaires when the company crashed into administration. You will get the picture from the Sunday Times headline How the Phoenix gang plundered MG Rover and from the paragraph in the article which reads:
While it stops short of accusing the Phoenix directors of fraud, it paints a picture of a group of men happy to pay themselves tens of millions of pounds, much of it stashed in an offshore trust, while the carmaker ran up big losses and ultimately ran out of cash, throwing 6,000 people out of work. They ignored corporate governance guidelines, switched valuable assets out of the car company into their own names, lied to MPs about the nature of their dealings, and bawled out the few advisers who dared to question the legality — or morality — of their actions. Read the rest of this entry »
Having just published an article about whether electronic disclosure is needed in all cases, I turned to Ralph Losey’s blog to discover that he had just published an article about whether electronic discovery is needed in all cases. We do have fun on our Sundays, don’t we?
My article is called How would Bray & Gillespie play in the UK?. The references in it to the propriety of making informed decisions against e-disclosure are a mantra which I often include to make it clear that electronic discovery / disclosure is not the inevitable outcome; the target is the right decision and the proportionate decision, and such a decision cannot be made without weighing and costing all the options. Ralph Losey’s article is called Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules which explores, amongst other things, the extent to which the obligation to discuss e-discovery at a Rule 26(f) conference can properly be discharged by a cursory agreement to opt for paper; the alternative, plastic, is seen as being:
where you waste a ton of money paying vendors to chase down unimportant ESI and pay young lawyers to read emails about what people had for lunch, which are then produced to each other on plastic CDs.
Ralph asks “Is there a conspiracy among attorneys, officers of the court, to disobey the very rules that they have sworn to uphold?” and concludes that he is not willing to go quite that far – yet. There are others in the US who would say that, and I used almost exactly the same words, mutatis mutandis, on my first outing before British judges two years ago, with the tactful rider that judges often made themselves silent co-conspirators by not making sure that the right questions had been asked. Ralph puts the same point this way:
[Judges] approve by their silent acquiescence. Not all do, of course, a few e-discovery oriented judges speak out, and speak loudly, but they are a small minority. Most judges just look the other way.Read the rest of this entry »
Bray & Gillespie is a US eDiscovery case which has attracted attention partly because its outcome was so predictable and partly for the strong views expressed by the judge as to the conduct of those involved. What would have been the outcome if the same facts came up in a UK court?
The US courts are seeing an increasing number of cases in which the basic competence of the lawyers is called into question and, if found wanting, is punished by sanctions. These rarely involve a bare failure to understand the technology even where it is the technology which is at the heart of the case. The defect is not that the lawyers did not understand computers but that they had not read the rules and the opinions which make it clear that the electronic documents must be handled properly. This compartmentalising of the technology itself (on the one hand) and the rules relating to its use (on the other) may seem to be a distinction without a difference but it matters very much; the lawyers are hired for their legal knowledge and skills and cannot excuse themselves for failing to know the law.
If you were to say to a lawyer “Do you know how an MS SQL database works?” he might reasonably say that he does not. If, instead, your question is “Do you understand the extent of your obligations to disclose documents?”, he cannot answer “no” without admitting to professional incompetence. One of the problems in this area is that lawyers conflate the two questions and believe themselves exempt from understanding anything at all about the subject. Read the rest of this entry »
Most of what I write about, however unlikely the starting point, brings you back to electronic discovery / e-disclosure sooner or later. Even I, however, can find no such connection for what I am about to point you to. I don’t mind, and I do not think that you will either.
The first mental draft of this post extended to a survey of the range of topics which I squeeze into here ancillary to or as illustrations of e-disclosure points. I will skip them all bar one, and perhaps come back to the rest another day.
The surviving link is the use of Twitter as a source of both information and contacts. As you will have gathered, I see it as a marketing tool of immense potential as well as a significant challenge to traditional lines of communication between lawyers (or any provider of goods and services) and their clients. Leaving all that on one side today, have a look at this amazing set of photographs which juxtapose scenes from post-invasion of Normandy in 1944 and the same views today. Read the rest of this entry »
My article Twitter as a source of e-discovery information drew a comment from Nick Wade, Group Product Manager for Symantec’s Enterprise Vault – Discovery. I had focused on Twitter as merely a source of information. Nick draws attention to its value for keeping in touch with customers, and points to other resources. His comment is as follows:
Great article on the expanding role of social media in our world of Discovery news, Twitter being one of those prime avenues of faster information dissemination. I was also interested as I worked at Mallesons quite some time ago, and I still enjoy seeing my old colleagues’ names in the stream.
I also think an excellent example of Twitter’s use is to find like-minded people and have a new ability to engage in short conversations with them. Shel Israel (http://twitter.com/shelisrael) has written a fine book about this and I’m reading it now; Twitterville. I heartily recommend it, as it’s a strong follow-up to his first book co-written with Robert Scoble (Naked Conversations). And here’s one final use; a lot of companies use it to find new avenues with which to talk to their customers. We do it at Symantec and it has been very useful not only to point people at articles, releases, technotes, webcasts and so forth, but to help with problems and resolve questions – all more quickly than we could before. Companies should be in Twitterville (as Shel says).
One quick thing – I’d certainly find it useful if you provided a link to Michelle’s twitter (in this instance) [quite right - have done so]. Read the rest of this entry »
It is interesting to find FTI Consulting, Inc. opening a new forensic and litigation consulting practice in Paris. There is more to this, I suspect, than the economic truism that, for those who can afford it, recession is the best time to expand and to invest against the anticipated upturn.
The press release gives three reasons for opening a new office – to deliver forensic accounting and litigation consulting to FTI’s existing French and French speaking clients, to develop its international arbitration practice in Paris, and to build on its electronic discovery and forensic technology work in France. I imagine that the business case included other and more specific factors such as the increasing incursions by US courts, regulators and government bodies into non-US subsidiaries and sister companies, investigating fraudulent activity either prompted by or exposed by the recession, and increasing activity on the part of EU regulators.
E-disclosure Information Project sponsor 7Safe has joined the growing number of businesses using a blog to pass on information about what it does and what is happening in the company. It is a powerful and cheap marketing medium whatever you are promoting.
It will not surprise you to know that I believe strongly in the role of blogging as a means of conveying business information. My blog began as a backup resource to my website, a place, as I pictured it, where I could drop snippets of information without the relative formality and structure which a website requires. It speedily became my main output platform, a place where I sometimes put thousands of words each week. Although I intended it primarily as a feeder for my website, most of the traffic in fact goes the other way, with my website acting as an index to recent blog articles. I do the same for a law firm client and am about to start another. It works. Read the rest of this entry »
The mechanics of electronic disclosure are not an inherently legal function like Will writing or conveyancing. Instead of assuming that the work will always be theirs, lawyers must ask themselves why the clients should not divert it somewhere else.
There is something comforting about the certainty that you will always be needed. Doctors can always be reasonably sure of a steady flow of patients. Farmers and others engaged in food production know that people will always need to eat. It is not yet foreseeable that we will do without some form of energy piped into our homes. Fashions in clothes may change but we will always need something to wear.
Many apparent certainties, however, do not in fact last for ever. An article in last week’s paper predicts the end of fixed line telephony. A petrol station or roadside inn finds that its busy road is bypassed. I live between a canal, the latest thing in transportation when it opened in 1790, and the railway line opened in 1846 which killed canal trade overnight. Sometimes the need for a skill set drops away – a Western doctor specialising in, say, cholera, rickets and consumption came to need new areas of specialisation.
The need to handle torrents of documents has historically generated floods of work for lawyers, subsidising other areas of the firm’s practice such as the delivery of high value advice from their expensive offices as big cases brought big disclosure exercises and the opportunity to turn their assistants’ hours into large bills. What, however, if document handling flows away to others? Read the rest of this entry »
The first big eDiscovery conference of the autumn is IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels on 30 September and 1 October. I am going there mainly to take part in a panel organised by Guidance Software involving, amongst others, US Magistrate Judge Andrew Peck of the Southern District of New York, and Senior Master Whitaker of the Queen’s Bench Division, Royal Courts of Justice in London. We are to be joined by three European judges, Judge Abeline Dorothea Reiling, Vice-President of the Amsterdam District Court, Judge Frank Richter of the Supreme Court of Hesse, and Judge Carla Garlatti of the Court of Appeal of Venice.
Although the UK is, perforce, part of mainland Europe for many purposes, one of the (many) differences lies in our respective systems of domestic law. The UK has a common law system very much closer to the US, Australia and Canada than to France, 22 miles away from Dover. The discovery of documents is a common law concept, and one which most of Europe has largely managed to avoid until recently. Read the rest of this entry »
A second Digicel judgment does not bear on the subject of e-disclosure, but relates to alleged waiver of privilege in documents containing legal advice. A mention of it here might forestall confusion on the part of those who turn up a Digicel judgment and are puzzled to find no reference to electronic disclosure.
I offered my excuses in a recent post (A round-up to catch up) for not providing all the hyperlinks to the conferences, companies and articles referred to in the article. It can double the usefulness of an article to include easy jumps to sources referred to; it can also substantially increase the time taken to finish off an article to find all the references and deal with the mechanics of effecting the links.
For English cases, I generally use the admirable British and Irish Legal Information Institute (BAILII) because it is available to all and has a simple, fast search mechanism. Although I refer frequently to Digicel (St Lucia) v Cable & Wireless and have innumerable places of my own to look it up, I find it easier to keep the BAILII search screen open and just type “Digicel” into the search box. That is how I discovered recently that there has been a second published judgment in that case. I draw it to your attention partly for its own sake and partly to save the rest of you from picking the wrong one as I nearly did. The judgment was delivered on 17 June and concerns a waiver of privilege point which came up on the 25th day of the trial. Read the rest of this entry »
Videos about the e-discovery /e-disclosure industry can be by captains of industry or the junior trainee, can cover everything from pure technology to business commentary, and can be formal or otherwise. A set of short videos by Mike Lynch of Autonomy shows that informed informality from the top can come across well.
I am, as I have mentioned, finding some interest in the idea of using videos, and specifically videos delivered by YouTube, as a means of getting the e-disclosure / e-discovery messages across. I was attracted partly by their immediacy and accessibility, but also by the fact that they suited the times both as to their cost (which can be minimal) and their use of popular technology to convey technology messages.
The potential scope is extremely wide, ranging from technical explanations (“here is an example of conceptual search”) to putting illustrative flesh on narrative bones so that bald references to, say, forensic collection of data might be illustrated by a short film showing somebody doing just that.
Such videos do not have to be technical. Electronic discovery / disclosure involves businesses of all sizes, from established giants to hopeful start-ups. There is value in hearing from those who have made it with messages for those who hope to follow them. Read the rest of this entry »
There is a fair amount going on at the moment and a round-up note seems a good way of catching up. I will come back to some of these topics shortly with more detail than there is time for just now.
ILTA generated a fair number of words – these are interesting times and it seemed important to capture some of the points as they flew by. The certification debate matters, as does the market mood at this stage in the recession and the furthering of US-UK commonality in e-disclosure even as the political special relationship receives its coup de grace. Twitter has taken up time – not working out how to use it nor the 140 character posts themselves but the leads and links which it has pointed me to.
My conferences page is out of date, mainly because of the time taken up with pending conferences. I am involved as speaker, panellist or co-chair in IQ PC’s Brussels conference on 30 September and 1 October, in the Masters Conference in Washington on 13 and 14 October, at the LexisNexis conference in Singapore on 21 and 22 October and in the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November. I will say more about these and give links to them shortly. These are all opportunities to carry the e-disclosure /e-discovery message far and wide, as well as to find out what other people are doing and talking about. I must here, as elsewhere, acknowledge the support of the sponsors of the e-Disclosure Information Project whose logos appear here and without whom it would not be possible for me to go to these conferences. Read the rest of this entry »
I am new to Twitter and have yet to get to grips with all the conventions. Its primary use amongst eDiscovery people (no-one there talks of e-disclosure, alas) seems to be to refer others to interesting articles elsewhere. That seems to me to be a worthwhile function by itself, with the other networking benefits (which I am yet to get into) as a bonus. It has obvious marketing potential for the wholly legitimate reason that joining in is part of the collaborative spread of information about the subject which has the potential to benefit everyone – the referrer, the author of the source referred to, interested bystanders (which may include potential buyers), and the market generally. So far as I can see, only one participant is using its tweets as a bald advertisement, and I hope everyone else will boycott them.
If I could wish for one thing, it is that people would refrain from making multiple references to the same source in close succession. There is a distinction here between what you might call “thoughtful” articles (or less than thoughtful in the case of a recent FT one presently causing a stir) and mere press releases – the former might warrant the endorsement of several tweeters whereas the latter really only needs one reference every few hours. The point emerged in relation to the announcement of EMC’s acquisition of Kazeon. Sure, it is news of some significance, but it is hard to see who benefited from several days’ worth of tweets pointing to the press release. As I remarked elsewhere, the first 30 or so were enough to convey the message, and all the repeats simply drowned out other, and potentially more interesting, references. You need to be pretty dedicated (or have a lot of time on your hands) to pay attention to every one. Read the rest of this entry »
The UK cast itself off from the US and the rest of the common law world when we renamed “discovery” to “disclosure”. Now the whole Special Relationship has apparently died. US-UK cooperation on discovery/disclosure will survive that.
Inevitably, this column attracts comments from time to time, varying from the sophisticated to the obscene (Tom Lehrer once suggested that these two terms were interchangeable to a New York audience). One of the more thoughtful ones recently read simply as follows:
It’s bl00dy “disclosure” you dinosaur
My correspondent is, of course, correct in his succinct observation. Since 1999, Part 31 of the Civil Procedure Rules for England and Wales has referred to the identification and exchange of documents as “disclosure” where every other common law jurisdiction refers to “discovery” and, by extension, to electronic discovery or e-discovery or ediscovery (I draw attention to the difference between the presence or absence of that hyphen because, although Google treats the two terms as more or less the same, Twitter, annoyingly, sees them as different). Read the rest of this entry »
My dog Saxon has adjusted well to the fame which comes from a mention in Gabe’s Guide. I referred to him in a post a few days ago and, before I knew it, the world’s press (well, Gabe anyway) blew this up into an assertion that I become more like Saxon every day.
At one level, this is a compliment. The traditional Labrador characteristics of straightforwardness and being pleased to see people are ones I am happy to identify with, as are Saxon’s good looks. I can cope with Wikipedia’s description of the breed as “well-balanced, friendly and versatile …. adaptable to a wide range of functions…highly intelligent and capable of intense single-mindedness and focus if motivated or their interest is caught…with a good work ethic and generally good temperament”.
On the other hand, if you find me chewing bones under the piano or trying to eat all the cow-pats on the Meadow, you will no doubt suggest that retirement beckons.
One could pick up various e-discovery parallels here. Labradors are designed to retrieve what you really want, and nothing else. Bringing back the right duck out of the marsh is akin to fetching the right document set from the morass in which the clients put it. A “chain of custody” has a dual ring to it. The trail which Saxon leaves up the hall carpet is less “audit” than “into orbit” if my wife sees it.
There is another connection. The English think of Labradors as the quintessestially English dog, when in fact they come from North America. Similarly, North Americans think that they invented discovery.
There are two halves to the question “How was ILTA for you?”. One is the personal reaction. Did I learn something and see some interesting technology? Did I meet interesting people? Did I have fun? The answer to all these questions is Yes, as I expected. The more serious question concerns the state of the industry, by which I mean the lawyers who are involved in e-discovery for litigation and regulation and their clients as well as those who provide software and services to them. Let’s take the easy bit first.
I am luckier than most at ILTA. I have no responsibilities apart from talking to pleasant people about a subject in which I am interested. I have no stands to put up and man; I do not have to do any hard selling or make any buying decisions; such formal meetings as I have are a pleasure rather than a burden; I do not have projects running back in the office and anxious clients to keep contact with; I have no staff to be responsible for nor is anyone responsible for me. My sole “duty” is to see people I know and like, to meet people I do not know, and to write about some of it afterwards.
On that basis, I am easily pleased. The venue was just fine, the organisation impeccable, the sessions and booths interesting, and I was in conversation with agreeable people from arrival to departure except when I chose to sit quietly writing. A lawyer from the US, the UK, or anywhere else where documents are collected for civil proceedings could have informed him or herself at any level – those new to the subject get a gentle immersion which they can take at their own pace, whether in sessions, by going round the stands or by just talking to others; those who want a higher level of learning, technology or discussion can easily find it. Read the rest of this entry »
Today’s Times reports on the launch of a new Judicial College which will give judges the opportunity to top up their skills and keep up to date with developments in the law, practice and procedure. The Lord Chief Justice, Lord Judge, introducing the new scheme, makes the point that judges work alone and that “one judge very rarely sees how another judge sets about his or her work”.
The prospectus for the new college will be published next week. It will be interesting to see if case management, and in particular the handling of electronic disclosure, will feature in the prospectus as a stand alone topic.
Disclosure is one of the biggest components in a civil litigation case. Its costs have grown in proportion to the volume of documents which exist, and out of all proportion to the sums at issue. Judicial control of electronic disclosure or, rather, the lack of control, was highlighted in a report by KPMG in October 2007. Many of those who made representations to Lord Justice Jackson’s Civil Litigation Costs Review emphasised the importance of helping the judges with this, and he so recorded in Part 8 of his Preliminary Report (see pages 381 and 382). Read the rest of this entry »
An hour or so after I posted my blog entry eDiscovery certification bars new entrants arguing against the apparatus of exams and certificates for in-house staff, a new post appears headed The Critical Need for eDiscovery Certification followed closely by another post apparently based on the same press release. It is not a riposte to mine but a fortunate coincidence – I stress the word “fortunate” because, as I acknowledge in my article, this is definitely an area for debate. Chere Estrin, the author of the article, refers (as I did last week) to Socha-Gelbmann’s observations on the shortage of expertise in the market. All the more reason, says I, for opening the doors wide, leaving it to employers to choose the right people, and to direct them to external resources where they can improve their skills.
Chere Estrin takes the opposite view and points us to the Organisation of Legal Professionals which “has been formed for the purpose of providing an exacting and tough certification exam to establish core competencies”. Some of the names on the list of governors of the OLP are people I know or know of, are experts worth listening to, and are interested in the future of the profession. Read the rest of this entry »
I said in an earlier article (Recruiting one’s strength for post-recession litigation support) that I would come back to the difficult subject of e- discovery certification. The context in which it came up was that of the individual skills of litigation support professionals, and that is what this article is about. It is worth observing, however, that the assessment of e-disclosure / e-disclosure ability comes up also in other settings, including:
The competence of services providers to render the services which they advertise.
The fitness of a lawyer or firm of lawyers to practice in litigation in a world dominated by electronic documents, and of judges to manage cases.
Specific technical skills acquired by following a curriculum and taking an exam, such as those required to use Guidance Software’s EnCase products.
Training in the use of a particular application.
Whilst some or all of these link into my subject, I mention them mainly to emphasise that they are not my primary concern here. I am concerned with the question whether individuals employed within a firm or company ought to follow a course of study leading to a piece of paper which demonstrates their aptitude. I will say straight off that I am dead against this, but the arguments to the contrary are not to be lightly dismissed in a single sentence. Read the rest of this entry »
I am not going to give you a full report of Richard Susskind’s talk to ILTA last week. Its basic premise is well-known to anyone interested in this area; I have written about it before; if you are interested, you would have read the book; and anyway, recording a Susskind speech is like trying to catch Niagara in a bucket. If you are not interested in what he says, then you will be dead commercially within five years anyway, whether you are in-house counsel responsible to the board, or a law firm hoping to receive instructions. This does not mean that you have to agree either with Susskind’s premises or his conclusions, but you do need to know what the arguments are.
Richard is not, it seems, much taken by my comparison between him and Private Frazer (see Richard Susskind End of Lawyers resources. Of course, (and as I acknowledged) a précis which characterises his message simply as one simply of doom ignores the fact that the title of his book The End of Lawyers? ends in a question mark. Even that chap who used to wander along Oxford Street with a banner proclaiming the imminent end of the world offered redemption to those who repented, and Susskind does the same. Redemption however, whether in business terms or in the wider spiritual context, lacks a simple road-map. We do not even have a destination, just the certainty that where we are is not the place to be. Recognising that much is a good start.
Instead of summarising the lot, I will pick one or two of the points which Richard Susskind made which seemed to me to have particular relevance in the litigation support context. Read the rest of this entry »
The Litigation Support Peer Group had a session at ILTA09 called The Future of Our Litigation Support Profession: What Lies Ahead? These are the people who actually do the work, so their reports and their views are worth having. They, and the high-level recruiter who sat with them, were optimistic, and that looks like more than mere hype.
What is interesting about discovery and electronic discovery, at least from where I sit, is that it embraces everything from state policy down to the minutiae of data handling, passing on the way some sophisticated technology, board-level strategy in law firms and their clients, and wider concepts like justice, winning and the like. It is also interesting, however, in career terms and in how firms and companies set up, structure and run the business unit which handles disclosure / discovery. Amidst all these high-flown business, technical and philosophical areas are people, in ones and twos or in teams, who are actually doing the work. Lest the reference to “business unit” may seem to imply big teams in grand departments, I see it as embracing also a single person in a small firm whose management is of projects and outsiders rather than of internal teams and who does not have to have responsibility for staff to need the tactical and strategic skills which were discussed in the session.
The Litigation Support Peer Group of ILTA is run by and for people like this. One of the many things that is interesting about the industry is that few have grown old working in it because it is itself too young (they may feel that they have aged fast, but that is a different point; Browning Marean claims to be 36, for example). Those in senior positions in litigation support have, by and large, transferred across either from the pure law side or from IT. Every firm has developed its own way of doing things, and three of those sitting on the panel are examples of those who have forged careers and taken on responsibility in what is a whole new area of practice. Read the rest of this entry »
It is obvious why American discovery must necessarily be bigger than discovery anywhere else. Everything else is bigger here and it is perhaps a point of honour – there would be a sense of failure if any other country had bigger discovery exercises than America.
Take the rain, for example. It was pouring down when I last left the US, after CEIC in Orlando in May. We could barely see the car in front as we drove to the airport. That same storm seemed to have reached Washington today, as Nigel Murray of Trilantic and I drove towards the Gaylord National Resort in Washington, the venue for ILTA09.
Like its twin in Dallas which was ILTA’s venue last year, this place is enormous. I spent the first hour or so exploring its vastness. It is not that there is nobody here. As its name implies, the Gaylord is a resort, and, for the weekend least, there are a lot of families here. There are two wedding parties going on – I can guess that they are separate parties because their respective guests are stunningly turned out in what appear to be themed uniforms, pale green silk for one and deep red and white for the other. Do only beautiful people go to weddings here or is there something about weddings which makes everyone look attractive? This is another of these “which came first” questions, rather like the ones which arise about the size of document populations – did the technology for document creation and storage develop to meet a need for more documents, or do we create more documents because the technology exists? Read the rest of this entry »
I will be at ILTA09 in Washington for most of the next week.
I have a few meetings and will go to some of the litigation sessions, but most of the time will pass in bumping into people and chatting. That does not sound like hard work, I know, but it is nevertheless what the job entails. I enjoy it and it tops up what I otherwise acquire by reading and e-mail contacts.
Reports will follow, not necessarily from ILTA itself (no time for that, too many people to talk to) but on my return at the end of next week.
I am a supporter of Women in eDiscovery and glad to learn from Laura Kelly of Epiq Systems that the London branch is active. They have a meeting on 17 September at the offices of Fulbright & Jaworski, 85 Fleet Street, London, EC4Y 1AE. Read the rest of this entry »
No time to précis it or comment on it, but George Socha and Tom Gelbmann have published their annual overview of the results of their annual survey on the Legal Technology News site.
If asked to pick the most important single observation from it, I would pick the shortage of expertise in the market-place, with providers, law firms and corporates reported as fighting each other for the few people who actually understand what is involved in handling electronic documents. That is important because it can only grow as a problem as we come out of recession. You can take or leave the predictions of 20% or 25% growth which some of the Socha-Gelbmann respondents apparently predict (I am prepared to take them myself) but it is certain that a generation of skilled and knowledgable people is not going to spring from nowhere.
I will give a more thoughtful assessment when I get back from ILTA in Washington. At the moment, my focus is rather more on clearing my decks before heading for the airport.
Guidance Software’s new EnCase Portable is interesting enough for itself. The way in which they are promoting it is even more so. The industry as a whole could make use of YouTube’s ability to point users to related material.
I happened to be with Guidance Software on the day that they announced EnCase Portable the new pocket-sized version of their forensic collection application EnCase, at a meeting of their Strategic Advisory Board at CEIC in Orlando in May. We were given a preview of the extremely neat kit — one USB drive containing EnCase and another to hold the data. The ability to put a forensic collection of data into your pocket looks like a proposition which should sell itself.
A couple of weeks earlier, I had written an article called the Untapped potential of YouTube as a promotional medium . The immediate context was the launch that week of a song called What Really Matters to Me by The Phoenix Fall, whose drummer is my son Charlie (it did very well, thank you for asking, and the second one is due out soon). The more important theme of my article, however, was that YouTube offered an instantly accessible promotional vehicle which went far beyond music videos. I raised, but quickly dismissed, the idea that Sir Rupert Jackson might launch his Preliminary Report (which was due out the next day) via a YouTube broadcast, but omitted to mention that Senior Master Whitaker once did a brief YouTube video about e-disclosure. Read the rest of this entry »
Everything was a mystery when I became an articled clerk in the late 1970s, not least that label “articled clerk”. Your articles were a period of apprenticeship, and the name also of the document which you and your principal signed by which he was bound to instruct you in the mysteries of legal practice. Of all the mysteries, the darkest was the job of the costs draftsmen. Literally darkest in fact, since these two elderly gentlemen shared a large gloomy room in the basement of the firm’s Georgian building in Gray’s Inn. My visits to them were rare, probably to deliver a file found to be missing from the huge piles which surrounded them. I never saw them anywhere else in the office. From time to time, a pile of files would return from its (always prolonged) stint in the basement, accompanied by pages of narrative and figures on stiff, strangely ruled, paper.
Firms of that size had not, until recently, had litigation partners. The client partner fronted the case, with the unglamorous parts falling to a managing clerk. The managing clerk’s office, also in the basement, had been turned into a stationery cupboard by my day, which gives some idea of his status.
In due course, the two old gentlemen disappeared and their role was contracted out. I recall taking part in only one formal dispute over the costs payable by the loser to the winner. My recollection is that my opponent was as ignorant as I was about the procedure, the principles and the components of the bill.
The costs of arguing about costs were a powerful disincentive to agree them, and it was usually possible to lump the costs in with the settlement figure or agree a rough and ready percentage of the fees actually paid by the winning party. Nothing much changes, I suspect, except that the amounts now are much larger, both absolutely and as a proportion of the sums in issue. Many cases are fought on, long after the parties have lost interest in the issues, because the sunk costs are so high. Read the rest of this entry »
Readers with long memories (I am talking ten days or so here) may recall an article Setting up dates for lawyers in which I extended an olive branch to anonymous Blogger 585 with whom I had taken issue in previous posts. 585 had written two articles about the scope for confusion caused by multiple date values stored within some files. Although I have served my time handling rows and columns of data, there is enough to cover in the wider legal and supplier market, and I rarely get into technical minutiae.
What I am interested in (and why I passed on the links which you will find in my post) is the message to lawyers and judges that, whilst there is a mass of technical detail underlying the handling of electronic documents, it is not generally necessary for the lawyer to dirty his hands with it. The lawyer does, however, need to understand what kinds of problems can arise, so that they can be anticipated, so that advice can be sought on them and so that the implications are factored into the time and cost budgets. One good reason for keeping off technical points is that there is usually more than one viewpoint, and I do not particularly want to play host to arguments about the finer points of data handling. Read the rest of this entry »
Technology companies make little use of technology to deliver their messages. Web demos may lack the personal touch of a face-to-face show, but you can reach many more people. They offer unparalleled opportunities to show off your products without the mutual commitment which a physical demo offers. The committed people will find you anyway – it is the others you need to reach.
The two web resources I talk about (from Anacomp/CaseLogistix here and Guidance Software in a separate article) are two I fell over (and the fact that I did so is perhaps interesting in its own right, since being found by people who are not looking is an obvious plus). I am sure they are not the only ones – let me know if you own, or have found, a web demonstration which is interesting as an informational medium.
I wrote recently about software demonstrations which I organised for Lord Justice Jackson (Jackson Litigation Costs Review consultation ends). Epiq Systems, Autonomy, and FTI Technology each sent along their best demonstrators and compressed their shows into 30 minutes each. The result was one of the most illuminating sessions I have ever seen.
You probably need to be a Lord Justice of Appeal with a report to write to command such a luxury. It is difficult for lawyers to organise multiple demonstrations and for suppliers to send their best men to every firm or company which expresses mild interest in their product. Not the least of the problems is that lawyers are fairly wary of expressing even mild interest. Merely putting their head above the parapet will, they fear, lead to a constant barrage of calls from an eager salesman keen to convert that mild interest into a sale, preferably a big one and during the current quarter. That dreadful question “so how soon will you be making a decision?” is the biggest deal-killer there is, and fear of it puts off those who simply know want what is out there or even just to understand the concepts. The supplier, for its part, has finite resources and an obvious wish to focus on the key targets. The salesmen himself (and it usually is a him) has an obvious personal interest in spending his time with those most likely to reach a quick decision. Read the rest of this entry »
Judge Facciola said that US judges now manage cases from their inception, including participation in the discovery process. Magistrate Judges, whose role includes trying to settle cases, are applying the same approach to the discovery disputes – trying to settle them. You cannot, he said, just sit there and wait for something to happen, but must be very proactive in dealing with matters in an anticipatory way. Judges cannot exempt themselves from the duty of competence which they expect from the lawyers, and the Federal Judicial Centre is holding two day conferences with a particular focus on discovery. Read the rest of this entry »
I am sent a fair number of press releases, although many of those who know I am interested in them seem to think that I acquire my information by some kind of intuition. Many of the PRs I do get add little to the sum of human knowledge. Many more, themselves worth following up, join a queue whose head they never reach. It is all a matter of timing. The upside to my refusal to do copy-paste journalism may be more reflective comment, but there are only seven working days in the week and a press release needs a wider context than merely its own news.
As I mentioned in a post last week (The right combination of skills at the best possible price) H5 dropped a press release into my InBox as I was writing an article about litigation lawyers dividing up cases and passing on the functions which they either do not do very well or cannot do cost effectively (or “cheaply” as the client would put it). I had in mind the marketing collateral, as well as the working benefits, of an approach which shifted the focus away from charging rates and towards placing tasks where they could be done best. The immediate context was outsourcing, for example of litigation coding and first-pass review, but I made the point that such a division of labour may be a marriage of equals rather than merely lawyers hiving off the unprofitable stuff and sending it down the food-chain. The H5 press release related to just such a marriage of equals, in this case between H5 and O’Melveny & Myers. Read the rest of this entry »
It is always helpful, when introducing something new, to be able to measure it against a familiar yardstick. When engines were first invented, their power was expressed as a multiple of the power of horses, and horses remain the comparator even now – highly sophisticated motorcars are still advertised by reference to the number of carthorses it would take to generate the same power output. We help each other to picture dimensions – height, length or area – by reference (in England at any rate) to Nelson’s Column, a London bus or a football pitch. I have heard document volumes expressed as “ESBs”, that is, the number of Empire State Buildings they would make if stacked (1 ESB = 7.57575758 Nelson’s Columns in case you wondered). We still refer to a “Gold standard”, although gold ceased to be the common medium of international exchange in 1971.
It is generally accepted by lawyers that the gold standard for accuracy of document review is reading by humans. For many lawyers, this is the standard to which they aspire and which they feel their duty requires of them. This is not the same as turning their backs on electronic review – they may be happy to conduct their review on the screen rather than on paper but are unwilling to delegate to a machine the task of deciding which documents must be reviewed and what decisions are made about them. It only when they get a case which cannot possibly be handled on this basis, that is, cannot be culled and filtered by humans, that they turn to technology. Read the rest of this entry »
It occurs to me that elephants have turned up more than once on this site as a source of parallels or illustrations. Their first appearance here was in May, when my attention was caught by some large plastic elephants in a hotel pool in Orlando (see Describing the ediscovery elephant). I concluded there that what discovery and elephants had in common that you could describe both of them to a blind person but that their impression ”though broadly accurate in outline, would inevitably be hazy on detail”.
A few days ago, comparing the UK and US approaches to e-discovery / e-disclosure in an article called Sugaring the e-disclosure pill , I said “On our side, it is the elephant in the room which no one discusses. In the US, it is just an elephant, big, ungainly, and very expensive to feed”.
Craig Ball was taken with this example, and leaped smartly in to point out that the expense of feeding elephants is only the beginning of the problem. You then have to deal with what results from feeding them. Craig says that he is “among the ranks who clean up after the elephant”. Read the rest of this entry »
It was usually fairly easy to give a date to a document in the days of paper files. In the absence of evidence to the contrary, one accepted the date typed or written on the face of document. If there was no date, the document’s place in the file was often a reasonable guide. There were usually few enough documents that one could look at the contents and draw a conclusion, at least as to roughly where in the date order list a document should appear. Since the lists themselves were hand-typed, the description could include “of approximately this date” or some such qualification to draw attention to the degree of uncertainty.
You cannot do that now – the volumes are too great for this kind of detective work and, except for scanned paper, descriptions generally consist of a file name or subject line derived automatically from the file. Besides, electronic files all carry their own dates, don’t they? Read the rest of this entry »
I am not sure how they keep the standard up, but CaseCentral has been publishing a constant stream of cartoons about e-discovery which must have done wonders for their profile. If I copied every one I liked, I would by now have run out of my allocation of storage space.
A recent one called The e-discovery black box encapsulates well the lawyer’s understanding of what goes on between asking “the system” a question and getting the answer. Charles Christian has beaten me to its republication, and it is easier to link to his copy than to make my own.
I may have brought you here under false pretences. I have no idea how big the London e-disclosure market is and I do not think that anyone else does either. I occasionally hear confident assertions suggesting that there is either much more or much less e-disclosure going on than people think but, since the starting point for these relative assessments is never specified, it is hard to deduce what “much more” or “much less” actually means. There is much less here than there is in America, but the same is true (for different reasons) of caribou and McDonald’s outlets. It is a statement of the obvious, rather than a valuable piece of market intelligence. Read the rest of this entry »
My adverse comments on a post by an e-disclosure blogger known only as 585 bring reactions from Craig Ball and from 585 himself. What level of debate gets the messages across? Politics shows us how easily we can turn people off a subject.
You can track the course of the sun by the flow of the e-mails. First you get the Australians at the end of their day. England gradually wakes up and then, in the late morning, the first messages start coming in from America’s east coast. By the end of our working day, when English e-disclosure cyberspace has only me andJonathan Maas in it, the west coast of America is in full flow. Then, before I go to bed, Australia starts again. So regular is this relationship between the sun and the e-mail traffic, that to get a message from Austin, Texas, at breakfast time makes you wonder if Phaëton had not once again taken the reins of his father’s chariot and driven the sun off course (oops, sorry, a few days’ immersion in the language of Sir Rupert Jackson’s report, as I have just had, and classical allusions start popping up everywhere).
Jan Eyck: The Fall of Phaëton
It was not Phaëton burning up the earth, but the doyen of America’s ediscovery commentators, Craig Ball, burning the candle at both ends. He had read my post Well-justified anonymity of Jackson commentator. To recap, that article was about an anonymous blogger, known only as 585, whose comments on Lord Justice Jackson’s 650 page Preliminary Report on civil litigation costs included a 625 word exposition on the proper way to disclose PSTs (Sir Rupert had apparently fallen short of the standards to be expected of a senior judge in his mention of this subject) and a disquisition on the imponderables which arise when estimating e-disclosure costs which, again, suggested to 585 that his lordship’s technical grasp was not as good as – well, as 585’s own grasp. Other articles were rather too free, to my eye, with imputations of incompetence on the part of lawyers and consultants involved in e-disclosure cases. 585’s article is called Electronic Discovery: Lord Jackson Report. Read the rest of this entry »
I have some heavyweight writing in hand at the moment involving, amongst other things, an analysis of the costs figures which Lord Justice Jackson set out in his Preliminary Report on Litigation Costs. Most of my articles come from my head, fortified by occasional references to other sources. These heavier papers are rather different, with lots of cross-referring between, in this case, the Preliminary Report, its Appendix 19 and the Civil Procedure Rules.
With that section done, something made me look back through my as-yet unfiled InBox to the week before I went on holiday. I had a vague recollection that I had not followed up a message from Laurence Eastham, editor of the Society for Computers and Law’s excellent magazine and website. I found it eventually – a recommendation that I look at an e-disclosure article on the Computers and Law site. Remorsefully, I looked it up – to find that it was all about the costs figures which Lord Justice Jackson set out in his preliminary report. I could have saved myself some research. Read the rest of this entry »
“Outsourcing” is just a label for the distribution of functions into the hands best equipped to perform them at the lowest cost. Both the functions and the relative costs change over time and need constant re-evaluation. Cost reduction involves more than the lowest rates, and the right marriage of skills does not necessarily require foreign adventures.
I wonder if it was wise of me to write about outsourcing (Do two outsourcing stories in one week presage a trend?). Every mom and pop coding shop from the Himalayas to Kanyakuman has been ringing me up – well, two of them anyway and that is two too many – trying to press their services on me. I had thought that I had seen them off last year.
I object to these calls on so many levels, none of which stems directly from the fact that they emanate from India. One is their grapeshot nature – the fact that the word “litigation” appears on my website seems to warrant picking up the phone to me, without any attempt to determine whether my role is likely to involve outsourcing coding work (it does not). Another is the lack of any attempt by the caller to distinguish his company’s services from the hundreds of others offering similar services; each of them recites some basic litigation support functions as if they had just invented the concept, and if you ask the for something, anything, which makes the caller’s company better than (or even just different from) any other, this is taken as an invitation to start from the top again with the recital of basic functions. I resent the repeated calls – either they are not bothering to record the answer I gave last time or they hope to batter me into submission; perhaps they hope to catch me out in an unguarded moment so that I inadvertently send them a big job. Above all, I reckon that if you are ringing up somebody in England, you should choose someone with a basic grasp of English to make the call. If the salesmen cannot speak English clearly, what might I expect from the technicians if I sent them a job to do? Read the rest of this entry »
A few seconds before midnight on Friday, an e-mail arrived from Abigail Pilkington, the Clerk to the Review of Civil Litigation Costs. It was a bit eerie, really. The East Wing of the Royal Courts of Justice is a cavernous, Gothic place at the best of times, like Hogwarts without the wizards. I got locked into an upper corridor one evening, many years ago (accidentally, I should say, looking for a judge to grant an injunction) and found it a disquieting experience. I pictured Abigail on her own in the gloom, conscientiously sending out acknowledgements to late submissions like mine. Closer inspection showed firstly that the e-mail was an autoreply, and secondly that it had actually been sent within a few moments of me sending my e-mail earlier that day. Perhaps the RCJ needs some wizards to look at it is e-mail system.
The message included a reminder that submissions must also be sent as hard copy. Fortunately (since the 31 July deadline was due to expire 30 seconds later), I had finished my submission with a day in hand and had noticed the requirement to send a hard copy in the nick of time. That took me back a bit – I don’t think I have sent out a hard copy of anything this century. I blew dust off the printer, and found one of those plastic spines which had fortunately survived my recent cull of office equipment which I don’t use any more. After lots of faffing about with envelopes and Sellotape, I set off to find a post office. Gordon Brown’s commitment to public services has included closing many of these essential local services, and our nearest one, some way off, is run with that surly inattentiveness which results from having a monopoly. You can’t drive to it – there is usually a queue, and the traffic wardens are the only competent and efficient representatives of our local authorities here in Oxford. So I waited for a gap in the rain, and walked to the post office, queued by the notices warning of all the services which post offices do not provide any more, had my package weighed, paid for the stamp, and trudged back to my desk. Read the rest of this entry »
My experience of trying voice recognition software again after a failed experiment some years ago, has messages for those who have not caught up with developments in litigation support software.
I have come back to voice recognition software after many years of assuming that it was an unwieldy and inaccurate method of transferring words from head to screen. I am immediately hooked and regret all those years spent crouched over a keyboard. Or do I? Is it possible that I have come back to it just at the point where it has reached a level of accuracy which is adequate for my needs, and just when those needs are greatest?
The e-disclosure context here is all those potential users of litigation support applications who dip their toes into the water once and retreat vowing never to try again. Some inadequacy, ranging from an outright system failure which lost their case through to a minor annoyance which became too tiresome to tolerate put them off, often with cries of “I told you so” ringing in their ears. Read the rest of this entry »
I am not sure what to make of an article which I have found on a blog criticising aspects ofLord Justice Jackson’s Preliminary Report on litigation costs. I have a general rule that if I do not have something pleasant to say in print, I keep my mouth shut. There are exceptions, of course, whom space does not permit me to list here but, on the whole, I reckon it is possible to comment thoughtfully and helpfully on the litigation support industry without attacking anybody, even if I have, occasionally, to grit my teeth.
I have stumbled upon this blog before, tipped off by one of my Google alerts. It seems competent, workmanlike stuff written by someone who (how shall I put this?) understands more about the technology than he does about the civil litigation context in which it is used. I have no problem with that – he knows much more than I do about file systems and data recovery – but I am put off, just a little, by the fact that the site is anonymous, with no clue as to who the author is or with what authority he writes. He calls himself 585. Do this number hold any clues as to his identity? 585 is (as I’m sure you know) the GeneID of Bardet-Biedl syndrome 4, whose symptoms I will spare you. I very much hope that this is not why he chose 585 as his alias. Perhaps it is his telephone extension. Read the rest of this entry »
My post’s heading, Woolf v Genn: the decline of civil justice, is taken from an article in the Times of 23 June 2009 which I missed. I do not altogether blame myself for not seeing it — the people who redesigned the Times website last year, turning it from a place of structured order into a kind of literary lucky dip, have recently turned their attentions to the print edition, and only random chance now brings me to the legal pages. Doubtless some of the alterations were for the better, but the designers could not resist throwing in some extra change-for-the-sake-of-change to ensure that we noticed that things were different now.
Much the same is said of the Civil Procedure Rules of 1999. An overhaul was overdue and some of the resulting amendments were undoubtedly for the better. The designers, however, felt obliged to make some showy changes, apparently for their own sake. If there was any logic in changing “discovery” to “disclosure” or in doing away with terms like “plaintiff”, “writ” or “Anton Piller” they were lost on me and on many others. I have already referred to an excellent article by HHJ Charles Harris QC published in The Times on 16 April (Sad and unsatisfactory — but not destroyed) who said this: Read the rest of this entry »
I have never been much good at this holiday lark. I can manage the logistics of travel, and I do not suffer from any illusion that the world’s continuing rotation depends on my being at my desk. I can flit off without a qualm if the destination is a foreign conference, but disappearing voluntarily is a different matter. I blame the Protestant work ethic in which I was brought up, then on being a law firm partner just at the point in the 1980s when we moved from having drinks before lunch to missing lunch altogether, and, finally, on several years of running a business involving software support which really did depend on my being available. What I do now in fact has few geographical constraints thanks to the BlackBerry and the ubiquity of broadband. It is, I begin to realize, no bad thing to give the brain a rest from time to time.
It is never the right time, of course, but the back-to-back conjunction of an unexpected opportunity to borrow a house and two commitments (simultaneously pleasurable and inescapable) took me out for two weeks notwithstanding my backlog. I should have been in Hong Kong, speaking at the LexisNexis e-discovery conference there; they got HHJ Simon Brown QC in my place, which will not have upset them at all. I had to break off a mind-stretching correspondence with a US commentator about the implications of a particular US Opinion which filled the closing moments before I left. A white paper was part-done when I went away; I took it with me in the vain hope of finishing it off, but it will be the better for having been unopened for a fortnight. Read the rest of this entry »
My post Cooperative hands across the sea referred to an article by Jason Baron on Ralph Losey’s e-Discovery Team blog. Jason’s article attracted some comments, two of which are worth hiving off for comment in their own right. One concerns the “information war” and is covered here. The other is about lawyer education which I will come back to.
Dr Jochen Lardner urges the importance of having the skills to conduct searches in any area of life in an information economy. He refers to “authority/credibility, censorship, technical failure, cybercrime/disinformation/information warfare”. Regular readers will know of my strongly-held view that all of these things, with the possible exception of cybercrime, are areas where UK citizens must do battle daily with their own government, both defensively (it will record everything about you and then lose the data) and offensively (MP’s expenses, ministerial cover-ups).
It now seems likely that the Labour Government will die of weakness and internal corruption before we get to the hanging-from-lamp-posts stage of civil disturbance which seemed a real possibility earlier this year. Nevertheless, we must remain alert to the potential for government misuse (whether by carelessness, incompetence or design) of the mass of private information which is collected about us, and be able to fight fire with fire – the “disinformation/information warfare” to which Dr Lardner refers is a civil war as well as one against foreign powers. Read the rest of this entry »
My post about the increasing exchange of ideas between the US and UK on matters of electronic discovery (Preserving the old ways, protecting the new ways) followed a spate of references in US e-discovery commentaries to what is happening in the UK. I observed that “The UK’s apparently quaint approach to disclosure conceals some workmanlike rules which deserve better use and serious consideration by others as well as ourselves”. An English audience may be interested to see some of what is said about us in the US.
The sources referred to below are amongst those to which I pay regular visits anyway, but their common element last week was that they all linked to articles of mine (and therefore turned up on my visitor statistics list). The point of the observation is not so much pride in the quality of my audience as evidence that what happens in the UK is now of interest in the US, which you would not have found a year or so ago. Read the rest of this entry »
This column, as you may have noticed, is deeply attached to the old principles of discovery of documents as a means of bringing evidence before the court. It is also a determined advocate of new ways of managing it. The US has tended to look on our rules and practice as rather quaint. As the gloss comes off the American way, however, there is a new appreciation of the British approach.
My title comes from a 1968 song by the Kinks. The Village Green Preservation Society included the lines
Preserving the old ways from being abused
Protecting the new ways for me and for you
What more can we do?
The Kinks were past their prime by 1968, with Waterloo Sunset and Sunny Afternoon behind them. It was the year in which Led Zeppelin and Deep Purple were new, and the nostalgia and sentiment of The Village Green Preservation Society were deliberately out of the mainstream, championing old virtues in a style redolent of an older (and perhaps non-existent) past. The previous year’s Summer of Love and flowers in your hair may in truth have been pretty unsophisticated concepts, but they seemed very modern compared with Ray Davies’s plea for “little shops, china cups and virginity”. Read the rest of this entry »
Vince Neicho, litigation support expert at Allen & Overy in London, has an interesting article in Legal Week about the increasing amount of discussion and shared ideas between those interested in e-discovery / eDisclosure in the US and the UK.
The heading, The same, only different, and the graphic which merges the flags of the two countries, presage the points which Vince makes. There are a mass of differences between the way the courts of the two countries approach the obligations which the parties have to disclose documents. In many ways, the perception amongst UK lawyers and judges that the whole business is just very expensive stems from these outward differences.
What the article does, however, is to emphasise that there are also core similarities, and that these are likely to increase as each side learns more about the rules and practices in the others’ jurisdiction. Read the rest of this entry »
The decision by Rio Tinto to send some legal work to India comes at the same time as Pinsent Masons announces its plans to send first-pass litigation review work to South Africa. Once you strip out the protectionist reactions of those who do this work now and those who make money from their work, you see the next obvious step towards globalization, and opportunities for those – lawyers and their firms – who ride the wave.
I picture Professor Richard Susskind as having a big wall chart on which he traces the progress of his various predictions over the years. Perhaps they are colour-coded according to the amount of derision they faced as he rolled them out – bright red, for example, for the idea that lawyers might communicate by e-mail or put legal information up on publicly-available web sites. I see him putting a big red tick beside them as the world catches up, or perhaps – since the adoption tends to be incremental – a graph showing the rate of adoption. This would almost always start with a gradually-rising line and then shoot upwards as the herd follows the early-adopters.
Two stories last week will have added to one of his graph lines – the idea that lawyers will distribute some of their work outside the firm to places where it can be done more cheaply. On 19 June, the Times reported (Rio Tinto’s legal switch puts pressure on London) that Rio Tinto has hired a team of lawyers in India to try to reduce its annual £60 million legal bill by 20 per cent, recruiting 12 lawyers in Delhi to work for it on tasks such as reviewing documents and drafting contracts. On 22 June, The Lawyer wrote about Pinsent Masons’ decision to outsource some of its litigation work to South Africa, becoming, the Lawyer said, the first UK firm to offshore the work of qualified lawyers (Pinsents – first firm to offshore work of qualified UK lawyers) Read the rest of this entry »
The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s); possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large. Read the rest of this entry »
Back in March, I wrote about an interview which I had conducted with Warwick Sharp, Vice President of Marketing and Business Development at Equivio (see Podcast summarisises Equivio benefits). A transcript of the interview was first published in Enterprise Technology Management (ETM), Q1 2009. ETM is produced by Informed Market Intelligence (IMI), London.
IMI’s primary audience is described thus:
Information technology has evolved to be the cornerstone of all business activity. Business strategy and technology solutions have become so intertwined that IT is now the driving force behind business success or downfall.
As a result of this convergence, a new type of IT executive has emerged: one who spends the majority of his or her time on business strategy, working hand-in-hand with business colleagues to not only support but actually drive business success.
Today’s global companies need to be strategic thinkers, able to move beyond reactive and even responsive behaviour. They need to be predictive, setting the technology agenda based on their understanding of where business and technology are moving. They need to ensure that all technology investments are driven by business strategy, and that IT is being used to ensure agility and innovation throughout the organization.
My own primary audience is further along the chain, the lawyers and judges who are responsible for handling electronic discovery for litigation, regulatory and related purposes, and the suppliers who serve them. There is, however, a close relationship between the two audiences – it is the corporate IT executives who own and control the data which ends up as the raw material for disclosure. There are two ways in which we can influence the latter to be more strategic and predictive – by anticipating the company’s disclosure requirements in their information management strategies, and by working more closely with the company’s lawyers both to be ready for any disclosure eventuality and when an actual requirement arises. Read the rest of this entry »
As I have noted elsewhere, I had my own cross-border problems in getting to the Sedona Conference International Programme on Cross-Border eDiscovery, eDisclosure and Data Privacy Conflicts in Barcelona on 10-11 June. I was chairing an edisclosure conference in London the previous day and due in Sydney at the week-end and, in consequence, arrived late in Barcelona and left as soon as the main business ended.
I am spared my usual faithful accounts of the sessions by Sedona’s sensible rule that “what happens at Sedona stays at Sedona”. My mission generally is to get as wide an audience as possible for what is said at conferences, but I am more than happy to submit to the restriction in this context, partly because there is more than enough else to write up and partly because the density of the dialogue (and Sedona is expressly committed to dialogue rather than debate) is such that you would need a book to do justice to its proceedings.
It seems sensible instead to juxtapose some stereotypes against the reality in an attempt to show those new to the subject what the broad picture is. This matters because cross-border issues inevitably involve cross-cultural matters as well as conflicts of laws. The best and most topical summary of the issues is Working Document 1/2009 on pre-trial discovery for cross border civil litigation prepared by a Working Party set up under Article 29 of EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Its introduction recites the problem thus: Read the rest of this entry »
You can generate a lot of notes in six conference days in three countries in nine days and have little time to transcribe them. I am quite good at actually recording what people say, less so at the small but telling details like headings and page-numbering. I can generally rely on my memory to fill the gaps in my notes (and the bits I cannot read) but that is a tall order when information has rolled at me continuously for days like infantry at the Somme. Ark Group’s e-disclosure conference of the beginning of last week seems a distant memory on a cold, wet dawn in Sydney ten days later when I started writing it all up, still more in the dark aeroplane cabin surrounded by snoring travellers on the way home when I finished it off. There was lots of good stuff said at the conference, but I doubt you would read a verbatim account even if I could set it down. What follows is a summary.
The chairman on Day 1 was Lee Gluyas of DLA Piper UK LLP who, as in previous years, was well up to the challenge of keeping speakers to time. Lee’s opening comments identified a positive shift over the time he had been filling this role, a greater awareness of the issues and the need to grapple with them. Read the rest of this entry »
Lord Justice Jackson laid down a challenge to litigation support providers at the Ark Group e-Disclosure 2009 conference in London last week. They must, he said, find a way to bring down the cost of e-disclosure; if they cannot, then the basis of disclosure will have to be changed. Other jurisdictions provide a disputes forum which does not require the parties to undertake the vast exercises which are needed for compliance with the existing disclosure regime. The implication was that the old and treasured principle that all the evidence must be rigorously examined is threatened by the brute fact that the cost of conducting that examination is too high.
There is much more to say about this than can be fitted into an account of a two day conference, so I will settle for a bullet point summary of the other elements which contribute more to the costs than most suppliers do: Read the rest of this entry »
If this piece has any e-discovery parallels at all, they are to do with project management and the contingencies of time and cost which turn up in any project. It is also about the apparently trivial things which flavour a user’s experience. I am attending three conferences in sequence, and will cover them in various posts. This one is mainly about the glue holding the conferences together – the journeys in between. Like any other form of service delivery, the small things make a difference.
The primary components in travelling work quite well really. Take railways: the concept of a set of parallel metal tracks, unimpeded by third parties, should be unbeatable as a service, with no major changes in principle since Brunel’s day. It is the people running it who f*** it up. Or flying: the idea that a large metal box can take to the air and put you down safely and on time half-way round the world remains remarkable all these years after Wilbur (or was it Orville?) flew a few feet across the dunes at Kittyhawk. The fact that you can look up, book and pay for all these things, research hotels at your destination, check the weather there and make contact with everyone who needs to know your plans, all from your desk, is pretty fantastic also, and that you can do most of that whilst in transit from a little box in your pocket even more so.
It is the little things which let it down though – lack of thought about details, or bloody-mindedness, or price. I am, for example, sitting on the floor at Bangkok airport whilst I type the beginning of this piece. Bangkok is a major airline transfer hub, a place where people from all over the world have to wait for an hour or four between flights. There is everything one could want here including, incongruously, Boots the Chemist and Whittards of Chelsea, but barely enough seating except at the gates. If we are sitting down, we are not adding to the footfall which drives the rents in this vast shopping centre in the middle of nowhere – and the simple way to keep us moving round the shops, they think, is to provide only a few seats. It is an attitude called “sod the customer”. It is a trivial point compared with things like the wings staying on but I will not choose to pass this way again if I can help it – and there is a choice. Read the rest of this entry »
When US Chief Magistrate Judge Paul W Grimm was in London for the IQPC Information Retention and e-Disclosure Management Conference recently, he mentioned the Maryland Protocol which he and others have devised for the better handling of electronically stored information in court.
Clive Freedman of 3 Verulam Buildings, the barrister who has been responsible for the actual drafting of the proposed new e-Disclosure Practice Direction as part of Senior Master Whitaker’s drafting group, made use of part of the Maryland Protocol for part of the final version of our Practice Direction, which is to be submitted this week.
There is an opportunity to hear Judge Grimm talk about the Maryland Protocol on Tuesday 9 June at 12:00 EST, when Wave University hosts a webinar at which it will be discussed.
I will miss it – I am chairing the second day of the Ark Group e-Disclosure Conference that afternoon. On the strength of other webinars in which Judge Grimm has spoken, I know it will be worth listening to.
Their article of 3 June is headed City will be test case for costs rules and includes a photograph of Lord Justice Jackson, three of the judges from the Birmingham Civil Justice Centre who will be running the trial, and Martino Giaquinto of Mills & Reeve who hosted the event at which the trial was launched.
It is no accident that the e-Disclosure Information Project was also launched in Birmingham. The modern, forward-thinking civil courts are representative of a thriving commercial and professional centre which seems to have a more cohesive feel to its business community than many other places. Read the rest of this entry »
A “document” is defined in Rule 31.4 CPR as “anything on which information of any kind is recorded”. Lawyers brought up in the days of paper disclosure, even those who have adjusted to electronic versions of those paper documents such as the source Word file, may overlook other things “on which information of any kind is recorded”.
At the top of the list comes recordings of telephone conversations. These days, our most mundane calls are preceded by a message warning us that our call may be recorded “for training purposes”. If that was indeed its only purpose, then the warning is little more than aural clutter to make us hate the company even more than we do already – most of us come across these messages when dealing with our ISP, utilities provider or similar organisation whose institutional incompetence extends to the erection of barriers against the customer. The added delay whilst some Estuary-accented trollop warns you about recordings certainly succeeds in putting me off making any call which is not vital, as is doubtless intended. Read the rest of this entry »
The graphical display of discovery / disclosure information has been one of the most interesting developments in software designed for search of all kinds. It is specifically so for litigation document review purposes and, perhaps even more so, for early case assessments when you are trying to find out just what the scope is of your document universe.
One of the distinguishing features of such a task is that the searcher often has no real idea of what the search will turn up. In most areas of research, you have a broad idea of the parameters of the hunt – I have been looking up flights and hotels recently, for example, and had the advantage of knowing that I was after a particular kind of information (a hotel, say) in a particular place (or places, given the particularly daft schedule which faces me over the next few days). Ranging shots in Google brought me to specialised databases which had fields to search in which corresponded with obvious inputs – dates, room-type, number of nights and so on – which are standard across most such resources.
Litigation is often not like that. You will, of course, have got from your clients some clues – names, date ranges, commonly-used words and so on – but whilst they may narrow the field, they are not conclusive as to what you might turn up, not least because you (if you are a lawyer) are an officer of the court as well as the client’s gladiator, and it is your practising certificate and insurance policy which is on the line. Read the rest of this entry »
I have just had to turn down the opportunity to speak at a conference organised by LexisNexis in Hong Kong on 20 and 21 July. The invitation was to deliver the keynote speech at the start of the first day with the heading Globalisation and Digitisation: the Rising Need for Digital Forensics and E-Discovery in Today’s World, which I would have been extremely happy to do.
My Mother’s 80th birthday party is on the previous day and my eldest son’s graduation ceremony is in Leeds on the day following. I could, with a fair wind, have made it to Leeds with two hours to spare by racing at dawn from Heathrow to Gatwick. I have done worse things – my breakfast-in-Sydney-dinner-in-Washington trip last October didn’t allow even time for an espresso between terminals at LA and, as I recounted last week, I made it from Orlando to IQPC in London just as the conference opened. I am game for that sort of thing, but not for missing my Mother’s birthday. Read the rest of this entry »
I do not take a great deal of notice of press releases. If they are interesting, everyone else will gamely recycle their contents, and who wants to be like everyone else? If they are not…. you don’t need me to finish the sentence. And when I say “recycle their contents”, I mean just that – a quick copy and paste and they are done – instant journalism. It has its place but it is not what I like to do.
I do, however, like to be sent PRs, so that I can decide if they are worth the trouble of translating from their native Marketing Crap into English. All those tri-partite, polysyllabic, hyperbolic exaggerations (like that one) which someone has laboured over so assiduously have to be stripped out to try and divine what actually matters (try it: look at most PRs in this business and you will find that every verb has three long adverbs and every noun has three adjectives – “rapidly, accurately and defensibly” or “innovative, cost-effective and user-friendly”; once or twice is fine, but by the time you get to the end of a piece in which every word has multiple qualifiers you are gasping for breath). Read the rest of this entry »
As regular readers will know, Ian Manning was the initial sponsor of the e-Disclosure Information Project, providing continued support despite his never-ending overseas travel commitments for FoxData Ltd. Ian’s extensive experience in forensic collections for commercial litigation and regulatory enquiries has provided valuable market intelligence to the Project as well as many e-disclosure anecdotes which have served as the basis for after-dinner conversations.
The point of all this is to explain to those familiar with my web site and blog the changes you will no doubt notice on it. Ian’s management association with FoxData Ltd ceased at the end of March 2009. However, as I hoped, Ian is keen to continue his personal support for the e-Disclosure Information Project. This support will come via his company Raposa Consulting Ltd.
One answer was the trans-Atlantic judicial panel which I described in that post, with Senior Master Whitaker, HHJ Simon Brown QC, Judge Grimm, Judge Facciola and me, moderated by Patrick Burke of Guidance Software. I have long wanted to do a mock e-disclosure hearing and this seemed a perfect opportunity. I saw one a couple of years ago in London in which Judge Facciola played – naturally – a judge. That had aimed at both US and UK procedures simultaneously and had, I thought, fallen between two stools in doing so. I wanted to do one under the English rules. We have had three cases recently – Digicel v Cable & Wireless, Abela v Hammond Suddards and Hedrich v Standard Bank London which had shown the downsides of not following the co-operation obligations under the Practice Direction to Part 31 CPR. Judge Grimm and Judge Facciola have been eloquent in their criticism of those who do not co-operate to reduce costs and who do not display the level of competence required of those who practice litigation. Why not cast them as the judge hearing an application by advocates who fell short of those standards, using facts similar to those of the English cases? Read the rest of this entry »
If I were to define a perfect working day it would go something like this: wake up in a comfortable hotel and take a five minute stroll to Piccadilly; sit on a platform with the two leading US and the two leading UK e-discovery judges and discuss developments in the two jurisdictions; go and see Lord Justice Jackson to discuss the e-disclosure parts of his report; take part in the premiere of your first play, a courtroom drama in which the judges are played by judges and the advocates by people whose life has been spent at the bar; then dine at Rules before going home with the sense, which others seem to share, that the disclosure world has moved on a bit that day.
It sounds all right as a way of passing the time, does it not? So that is what I did on Thursday, on Day 2 of IQPC’s Information Retention and E-Discovery Management Conference. I am but the Boswell to the distinguished set of Dr Johnsons who took part in all this and my main contribution was made months ago. I am on the Advisory Board for the conference, and Sarah Haynes of IQPC rang me up and asked which US judge should be asked to take part in the judicial panel which Guidance Software were intending to run. “Ask Grimm or Facciola” I said, much as one might say “Get Kidman or Jolie” for a film, or “Ask Rooney or Ferdinand” round to play football. Sarah rang back a few days later and said “They are coming – what would you like them to do?” Read the rest of this entry »
I reached IQPC’s Information Retention and E-Discovery Management Conference 2009 just as the first speaker stood up on Wednesday morning, feeling rather like Phileas Fogg as he burst into the Reform Club with seconds to spare. Although I had not been round the world in 80 days, it felt like it after the 4336 miles overnight from Orlando (see posts here and here as to why I was in Orlando). At least it was warm and sunny in London, unlike damp, dank Florida.
The IQPC e-discovery conference is one of the best in the London calendar, as much for the people one meets there as for the content. At my first, two years ago, I was introduced to three people on one day who have directly contributed to what I do now. Victor Limongelli, now CEO of Guidance Software, gave the first talk I had heard which drew attention to the similarities and differences between US and UK procedure and practice. Master Whitaker spoke rather pessimistically about the difficulties of persuading judges and practitioners that the proper court management of electronic documents was vital to control litigation costs. Mark Surguy of Pinsent Masons talked about the need for lawyers to understand technology and to get to know some providers of software and services who could help them. Read the rest of this entry »
I have already written (Describing the e-discovery elephant) about the two e-discovery panels which I took part in at CEIC 2009. The panels were only one of the reasons why I came here. There was another formal reason and countless informal ones.
The other formal reason was a meeting of Guidance Software’s Strategic Advisory Board which brought together a small group of people from different parts of the e-discovery field – two General Counsel responsible for electronic discovery in large corporations, two well-known private-practice lawyers specialising in e-discovery, and two industry experts from other jurisdictions – who sat down with senior executives from different areas of the company’s activities. The traffic passes both ways at these things – the company gets input from those outside it and the invited members learn more about what the company is doing and what it plans to do. Discussion ranges beyond the company and into the wider industry, with the combination of the occasion and the assembled company taking us down ways not envisaged in the agenda. Read the rest of this entry »
I don’t think I envisaged a peaceful life when I decided to commit all my time to promoting electronic disclosure, but I am not sure either that I foresaw this much activity compressed into a short space. It is just as well that I enjoy it. My original policy never to say no to anything which will get an audience for the subject has had to be modified a bit – double-bookings are difficult, for one thing. Every event involves preparing slides and notes, not just turning up on the day, and the everyday stuff – researching and writing – goes by the board when there is always something happening or about to happen. I would not want it any other way but it would be good to have it better spaced. A summary will have to suffice for now, and the summer promises time to catch up. Read the rest of this entry »
Although the business of the e-Disclosure Information Project involves telling law firms and corporations about electronic disclosure technology suppliers, I avoid discussions about pending competitive tenders in the e-disclosure market. Given the range of people with whom I am in contact, the chances of hearing twice about the same contract from rival bidders are too high and, metaphorically at least, I put my fingers in my ears if I fear I might learn more than I want to know.
No-one, however, could avoid knowing that Clyde & Co has been working to identify preferred suppliers of electronic disclosure services. It seems ages ago that I first heard about it, in a remote country pub (life is not all glossy conferences and airports, you know) and it became clear that Kevin Butterill, Clyde’s litigation support manager, was extremely keen to get it right. The tender became the Moby Dick of the e-disclosure seas, each provider his own Captain Ahab on a mission to hunt it down. Read the rest of this entry »
Lord Justice Jackson’sinterim report on civil litigation costs weighed in at 650 pages, not the 1,000 pages which rumour anticipated. It is as well that I am commentator not a newshound journalist, because I missed the big day and was on-air myself at a rather more nuts-and-bolts level (giving a live e-Disclosure broadcast) as Sir Rupert Jackson was being interviewed by the BBC on the more momentous subject-matter of his report.
That there was something for everyone in the report is evidenced by the range of things which others picked up on in reporting the launch. LegalWeek headed its report Jackson to review complex commercial disputes and picked up on Sir Rupert’s expressed determination to cover complex multi-party disputes as well as cases in lower courts. It quoted him as saying “I have come to the conclusion that the Commercial Court is not a sacred territory, which falls outside the terms of reference set for me by the Master of the Rolls……The recommendations in my final report must encompass all civil courts, including the Commercial Court.”
You can launch political policies, bands and brands on YouTube, but perhaps not 1,000 page interim reports on litigation costs. Lord Justice Jackson will do his launch tomorrow with an old-fashioned press conference. Other things, however, bring the marketing and educational value of video to mind.
Lord Justice Jackson’s initial report on the reform of civil litigation costs is due to be launched at a press conference tomorrow, 8 May. There is an article in Times Online today by Neil Rose headed What will the Jackson report say? which summarises some of the things we might expect to see from what is rumoured to be 1,000 pages long – and that is just the interim report.
The article’s most important point comes at the end – this not a government-commissioned report. It was the Master of the Rolls, Sir Anthony Clarke, who asked Sir Rupert Jackson to undertake what was always going to be a vast and important task. The role of judges is central to any planned reforms and, one hopes, something which is immune from political pressures.
I will not be there, unfortunately. I long ago agreed to do an e-disclosure live video presentation for CLT Onlne which goes out at 1.00 tomorrow. The bare reference in my slides to the Jackson Litigation Costs Review will be outdated by the time I get to it. Read the rest of this entry »
Professor Richard Susskind caused a stir at the ABA TechShow in Chicago in April with his thoughts on the way the future looks for the legal profession. The context was the launch of his latest book, The End of Lawyers?, that comforting question mark flagging the possibility that the profession may survive in some form if it adapts.
I wrote about Susskind’s book when parts of it were trailed in the Times (see Richard Susskind and the End of Lawyers) and I will not repeat what I said there about the potential for change in the litigation support market. Nor will I attempt an overview of Susskind’s wider propositions, which are readily available elsewhere.
I have been listening to a webcast of a discussion between Richard Susskind and Mark Harding, Group General Counsel of Barclays, and focusing on a couple of points which seem to me to both imminent as opposed to speculative (although Susskind’s speculations tend to become the norm rather quickly), and relevant to the management of litigation and other areas which involve the handling of electronic documents. Litigation is the one area which (as I noted in my earlier article) has defied Susskind’s original predictions because (he told me when I asked him three years ago) the clients had not put pressure on the lawyers to adopt technology. Read the rest of this entry »
The Information Retention and e-Disclosure Conference run by IQPC is usually one of the best in the calendar, with a better-than-usual mix of corporate users and information professionals. It take place this year on 20 and 21 May at Le Meridien in Piccadilly. As usual, Day 1 is concerned with information management and Day 2 with litigation and regulatory matters.
The Australian Federal Court has promulgated new Fast Track Directions which aim to get a case finished within 5 to 8 months, and to reduce costs by limiting discovery and avoiding lengthy interlocutory disputes.
I have noted before that the Australian courts have a more flexible approach to the eligibility of a case for special tracking arrangements – a case is fit for the fast track (subject to some exceptions) because that is what the parties agree or what the court orders, whereas the UK allocation depends on fixed limits.
Pleadings are replaced with Fast Track Statements, Responses and Cross-Claims. There is an express general duty to co-operate and to act in good faith,expressed thus:
5.1 The Court expects the parties and their representatives to cooperate with, and assist, the Court in ensuring the proceeding is conducted in accordance with the Fast Track Directions so that the real issues in dispute are identified as early as possible and are dealt with in the most efficient way possible.
There is also an extension of that duty to co-operate in respect of interlocutory disputes which is put like this:
5.2 Before making any application relating to an interlocutory dispute (including disputes in relation to discovery), the parties must meet and confer and attempt to resolve the dispute in good faith. If the parties are unable to resolve the dispute, any application about the issue must contain a certificate by the moving party’s lawyer that the ‘meet and confer’ requirement was completed, though unsuccessful. Failure to so certify will result in the application being immediately refused.
Discovery itself is limited in a manner which reflects the rules, if not necessarily the practice, under the UK CPR. The requirement is
7.1 Except where expanded or limited by the presiding judge, discovery if ordered in proceedings to which the Fast Track Directions apply will be confined to documents in the following categories:
(a) documents on which a party intends to rely; and
(b) documents that have significant probative value adverse to a party’s case.
… and there is a duty to make a ‘good-faith proportionate search’ and to explain what steps have been taken.
The court’s duty of active management is both expressly provided for and clearly implicit in the scheduling arrangements. The new Practice Note fits briskly on to ten pages. It will be interesting to hear how it goes and what the practitioners and judges feel about it after a year of operations.
My thanks to Geoffrey Lambert of KordaMentha for drawing my attention to the Fast Track Directions.
Autonomy has wasted little time in extending its search technology into the iManage products which came to it with the acquisition of Interwoven. It has announced an audio processing capability for what is now called Autonomy iManage WorkSite.
The business rationale lies in the growing amount of audio which law firms now have. Voice-mails, recorded depositions, in-house educational materials, and a wide range of other sources are now routinely recorded and kept. The need to search them is no less than the need to hunt down documents in more conventional forms – and it is a measure of how far we have come that we now consider Word files, spreadsheets and other electronic files as “conventional”. Read the rest of this entry »
After leaving Oxford, I
qualified as a solicitor in 1980.
I have worked as a consultant
and developer in litigation support since 1993.
My primary focus is on the encouragement of
e-Disclosure by working with the courts and
with suppliers to achieve a joint approach.
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