EU promises data protection savings and reduced burdens on business

February 28, 2012

The European Commission has collected together information about its proposed reforms of the EU Data Protection Rules, including the press release of 21 January, the press conference with Vice President Viviane Reding of the same date, and a number of fact sheets, surveys, legislative texts and other information.

For those who like their source material raw, this is the place to look.

Vice President Reding has followed that up with an article on CNN called How Europe is Dealing with Online Privacy. Call me cynical, but if her “one-stop shop for businesses to deal with regulators”, and the employment of Eurocrats to run it, results in the promised reduction of administrative burdens and a saving of €2.3 billion a year for businesses then I will eat my proverbial hat. Read the rest of this entry »

Delay for Draconian Data Protection Regulation

January 18, 2012

The term “displacement activity” has a technical meaning in animal biology, something I am happy to leave to the animal biologists. The lay use of the term connotes some activity undertaken in order to avoid having to do something else which is both imminent and important. I spent most of the run-up to my College of Law exams, for example, writing stories and articles about things which interested me – anything to defer having to learn about trusts and torts.

I am fortunate that I eventually found a way to monetise my displacement activity, making a business out of writing stories and articles about things which interest me. Even now, however, it occasionally becomes necessary to focus on something inherently dull, and nothing can be duller than an EU regulation  (or, come to that, anything else which emanates from Brussels – even its scandals make one yawn). I was not therefore thrilled when someone leaked the draft texts of the General Data Protection Regulation and the Police and Criminal Justice Data Protection Directive, because that imposed a duty to read at least the first of these. It runs to 116 pages in its English-language version, so it could, if you printed it, serve as a pillow when your eyelids start to droop, as they will about three pages in.

A quick skim took me to the usual bit which describes how many more EU bureaucrats will be needed to carry on the good work, and I closed it quickly in case I broke something in rage (in the interests of wider Anglo-EU understanding, I should tell you that the French for “pen-pusher” is “gratte-papier”). Read the rest of this entry »

AccessData conference carries electronic discovery message to Germany

March 1, 2011

I am very much looking forward to moderating an electronic discovery conference in Frankfurt on 22 March. The hosts are AccessData and the speakers are drawn from a broad range of legal, technical and compliance backgrounds, and from well-known firms and companies such as the Luther Law Firm, Siemens AG, DRSDigital, Allen & Overy and Alvarez & Marsal. The programme is here.

Between them, these speakers will cover the growing importance of ediscovery in Germany, forensic services from the viewpoint both of those who collect and manage data and of those who advise on it, and matters of compliance and due diligence. Brian Karney, President and COO of AccessData, rounds the conference off with a session called Getting the Job Done: the Technology. My role is to open the show with a welcome and introduction, to keep us to time (no small challenge with this number of speakers crammed into one afternoon) and to lead the closing panel.

The number of corporate counsel at IQPCs ediscovery conference in Munich last year showed what an appetite there is for discussion about ediscovery in Germany. This is hardly surprising: Germany has the fifth largest economy in the world and the largest in Europe, with a 3.3% rise in GDP in 2010 following an earlier fall. Its exports in 2010 are estimated at $1.337 trillion; 6.7% of this went to the US, which also provided 5.9% of its imports.

That volume of trade with the US, quite apart from US investment interests, inevitably brings US-related litigation, regulatory and compliance implications. Germany’s position in the EU brings growing activity of the same kind, both from Brussels and of domestic origin. The last two years have seen Germany as one of the leading (perhaps the leading) player in the development of data protection and privacy activity. Like other civil countries of mainland Europe, Germany has no discovery tradition such as is found in the US, the UK and other common law countries.

There is, therefore, much to learn in a short time. Anecdotally at least, there seems to be recognition of this, at least amongst the bigger German companies and I anticipate a good turnout for an event as broadly structured as this one and with a cast of this calibre.

The venue is the Schlosshotel Kronberg outside Frankfurt. Who could not warm to an establishment which describes itself as Very Britisch and talks of Tradition, Hightea-Kultur und Schlossatmosphäre (Tradition, high-tea culture and castle atmosphere) which, it says “are inevitably associated with Great Britain”. Quite so. The conference finishes with a dinner at which I suspect the day’s discussions will continue.
There are places left for this event. The AccessData contact details are on the programme.

Catching an eyeful in Leeds and a snowfall in Munich

December 3, 2010

The paucity of posts lately may lead you to think that all is quiet on the e-disclosure / e-discovery front. It is in fact a symptom of the opposite – there has been more than enough to keep me amused, and on things which seem to point to an increase in e-disclosure activity. My side-interest in civil liberties has provided a diversion, and I took a daring Saturday off to go to Leeds for a Phoenix Fall gig.

I have recorded October’s trips to Washington, Canada and Singapore. November has brought a London conference and one in Washington which I have yet to write up. I am just back from Munich for IQPC’s Information Retention and e-Discovery Exchange which I will also write up shortly.

These trips are the icing on a cake whose main ingredient is domestic and below the surface. I have been to a couple of major regional cities to talk to firms with the potential to capture work from larger but less agile players, and done the same with some London law firms. The expressed motive behind their invitations is to hear about the Practice Direction and Electronic Documents Questionnaire, which gives me the opportunity to suggest to solicitors that we have a window in which we can shape e-disclosure as we think it should be. The window will close if we start seeing judgments which apply old principles to new problems.

You will see shortly from my pending report of an impressive judicial panel at the Georgetown Advanced e-Discovery Institute that the developments in England & Wales – the Practice Direction, the Goodale judgment, the Birmingham costs-management trial, the spate of cases – are exciting attention in the home of electronic discovery; all we have to do is make the practice conform to the framework of rules which others are beginning to envy. If there is plenty to fear (have a look at these cases, for example), there is also opportunity to capture work from others and to offer new skills to clients. Read the rest of this entry »

A useful guide to sources on EU Data Privacy Laws

November 8, 2010

The Guidance Software Newsroom carries a new article by Denise Backhouse of the eData Practice of Morgan, Lewis & Bockius, LLP headed Master European Data Privacy Laws. I refer you to it because it is expressly intended as a guide to useful sources of information on EU data privacy and data protection, a subject which exercises many US lawyers but not, apparently, to the extent that they feel the need to learn about it in advance of their next major EU data collection exercise. Denise’s article may help them to understand what the issues are.

One key to understanding the problem is to know that no one has all the answers, and Denise rightly draws attention to the need to take local advice in each jurisdiction in which the data may have to be collected. As she points out, a “jurisdiction” is not just the whole EU, nor merely any legal state within the EU, but can include smaller units like individual Länder in Germany. Knowing even that much is a good start for those who tend to approach EU data collections as if the writ of an American court runs everywhere.

Denise and I were on a Guidance Software panel at IQPC’s conference in Brussels last year, and were more recently on a London panel organised by Recommind. The subject comes up again on a panel I am on at Georgetown on 18th and 19th November, and Denise and I are covering the subject, together with Master Whitaker at IQPC’s Document Retention and EDiscovery conference in Munich starting on 29 November. I am moderating, and Denise is the main speaker, as befits her status as one of the few US lawyers who is authoritative on the subject. Master Whitaker will talk about the use (and misuse) of the Hague Convention, and I will talk about the cultural differences which lie at the root of the conflict between US demands for documents and EU unwillingness to part with them.

You need practical as well as legal help when stepping into the deep waters of EU data collection, and that means a technology supplier with experience in the area. Sticking to those who have come to my attention recently (so don’t all write in if I have missed you off my list), FTI have recently announced a new consultancy service FTI Investigate aimed at helping with EU collections, I have written a paper (not yet published) about Iron Mountain’s services on this subject, Epiq Systems has a fully-staffed office in Brussels, and Trilantic (now part of Huron Consulting Group) has a section of its website which links to the laws of every relevant jurisdiction.

Look, perhaps, at the list of those sponsoring the IQPC Munich event referred to above which, in addition to most of those already mentioned above, includes AccessData, Alvarez & Marsal, Clearwell, Commvault, Ernst & Young, KPMG and Symantec. They will be there because this is territory which they know, so ring one (or more) of them up before you pack your bags to set off on what may appear to be a routine data collection exercise. But perhaps read Denise’s article first, and follow some of its useful links.


Turning e-discovery news and views into a community of interest

September 21, 2010

Those of us who work in e-discovery / e-disclosure get better and better at passing information and views between ourselves.  Web sites, blogs and Twitter allow us to keep up with developments – new products, company news and cases – in a market which changes all the time. Improvements in the mechanics of information delivery do not make it easier for new readers (which is the audience which matters) to understand it all. Can we turn this stream of information into a community of interest?

The word “community” has been hi-jacked by the woolly thinkers of the soft left. Private Eye runs a regular column pillorying those who write of meaningless “communities” whenever two or more people have some characteristic in common.  The expression “community of interest” has a meaning worth keeping, however, and is correctly used (and hard to replace) when different groups have common ground. The one in which I am interested is the loose assembly of lawyers, their clients, judges and technology providers who aspire to the proportionate use of electronic documents in litigation. That aspiration is purely notional in many cases, mainly because many of the players do not fully understand what the others need or can offer.

This article began as a way of covering many apparently disparate pieces of news or information in one place. As I wrote it, themes began to emerge which mapped on to some of the conversations which I have with lawyers seeking a quick ramp into the broad options which they face when e-disclosure becomes inevitable. We who have grown up as the industry grew up throw names and terms at each other, as if the audience shared the building-blocks of knowledge. They do not. Running several stories together may make for a long article, with loops and digressions as I expand on things which seem obvious to industry regulars, but those to whom it is all new may find that helpful.

One of the links which I intended to pass on anyway happened to be an interview in which Richard Susskind argued for better use of social media and for the development of a community of interest between the participants in the wider legal IT industry. That neatly tied in with my plan to base this article round a series of tweets, and suggested by extension that Twitter provides a ready-made core for such a community. It does so already for those on the inside. We need to invite the users in. Read the rest of this entry »

International eDiscovery Panel at CEIC

May 31, 2010

There is one major difference between the general run of discovery problems and those relating to international and cross-border discovery. The former are soluble – competence and co-operation coupled with judicial management would fix most ediscovery problems tomorrow; the trans-jurisdictional issues involve serious conflicts, not just of laws but of culture. As things stand, these seem irreconcilable, and it sometimes feels that the best we can do is to make people aware of and sensitive to the issues.

The panel assembled to discuss these matters at CEIC was well-qualified. M James Daley of Daley & Fey, LLP is Co-Chair of The Sedona Conference Working Group on International Electronic Information Management, Discovery and Disclosure (WG6) and a member of a delegation which recently met with the Article 29 Working Party in Brussels (see my article Sedona Conference WG6 presentation to Article 29 Working Party in Brussels. Dominic Jaar of Ledjit Consulting Inc., is Chief Executive Officer at Canadian Centre for Court Technology and is a member of The Sedona Conference’s working groups 1 (USA) and 6 (International). George Rudoy of Shearman & Sterling, LLP has more practical experience than almost anyone of managing and doing foreign data collections. Patrick Burke of Guidance Software was the moderator. Read the rest of this entry »

CEIC 2010 comes to an end

May 27, 2010

CEIC 2010 is winding down here in Las Vegas. Whatever measure you take – the quality of the sessions, the opportunity to catch up with people and meet new ones, the sheer numbers of people attending (1,300 or so), the venue, or the glimpses through the bus windows of this not-quite-real city on the way back from dinner last night – it has been a great success.

For those unfamiliar with it, CEIC stands for Computer and Enterprise Investigations Conference and is run by Guidance Software, whose data collection and processing applications are used all over the world for everything from one-off defensible collections to enterprise-wide network collection applications and the consultancy which goes with it. My particular interest, electronic discovery, is only a part of what the applications are used for – internal investigations, HR incidents, government and military needs, and rapid reaction to external or internal demands for information, are all covered. It is deeply technical stuff, and its users need technical training to match. CEIC allows all those involved – from hands-on lab types to decision-makers – to gather once a year, to top up their skills, to meet others with the same or adjoining skills, and to find out what drives the other players. The technical people increasingly need to know about the context in which they collect data, and those who devise strategy must have some idea of technical difficulties and solutions. Read the rest of this entry »

The Franco-British Lawyers Society on cross-border e-Disclosure 17th of May 2010

May 1, 2010

The Franco British Lawyers Society have organised an evening session called Searching for evidence: a panel discussion on cross-border e-Disclosure from an English and French perspective. The event takes place on Monday, 17 May at 6 pm at Pinsent Masons, 30 Aylesbury Street, London EC1R 0ER.

The speakers are:

  • Mark Surguy: Legal Director at Pinsent Masons LLP.
  • Caroline Jan: Solicitor at Pinsent Masons LLP.
  • Claire Picard: Avocat at Salans.
  • Vicky Harris: Business Development Director at Merrill Corporation.

Registration is solely via the FBLS and places are limited. The event is free and includes a drinks reception. Contact Marie-Blanche Camps by email at

You might also be interested in the FBLS events programme. I see from it that I missed an event in Edinburgh called The use of modern technologies in the Scottish and French court systems. The speakers included the Unit Manager of the Electronic Service Delivery Unit ‐ Scottish Courts and the Senior Legal Adviser of the E‐Justice working group of the Council of Bars & Law Societies of Europe. Both E-Justice and the use of technology in Scottish legal practice catch my interest, and I would have promoted this talk, or even attended it, if I had known about it.

I cannot, unfortunately, attend the 17 May Anglo-French event because I will be out at an Anglo-US dinner that evening with a group of judges – e-Discovery experts all – from both sides of the Atlantic. If we merged the two events, we could probably resolve any number of multi-jurisdictional discovery problems.


EDiscoveryMap helps navigate cross-border issues

May 1, 2010

Monique Altheim, a New York qualified lawyer, has quickly established her blog, EDiscoveryMap, as a mine of information on matters of personal data, privacy, data transfer and cross-border transfers. I follow her on Twitter as EUDiscovery and EDiscoveryMap which keep me up to date both with her own writing and with other sources.

Monique attended the IAPP International Association of Privacy Professionals Global Privacy Summit 2010 in Washington recently. Many from Europe failed to make it thanks to the volcano. They, and anyone else interested in this topic (judging by Monique’s blog hits, a great many people) ought to look at her blog which, as I write, includes near the top several video interviews with people who are knowledgeable in this area. Read the rest of this entry »

IQPC Corporate Counsel Exchange in Brussels 18 – 20 April

April 12, 2010

I am off to Brussels at the weekend for IQPC’s Corporate Counsel Exchange. The format for this conference is rather different from the conventional series of panel discussions and platform speeches – there are plenty of these, but the primary purpose of the event, as its name implies, is for the exchange of ideas rather than merely their promulgation. The speeches and panels serve as the catalyst for business meetings and round-table discussions.

This format seems to be appreciated both by corporate counsel on the look-out for ideas and answers and for those who have software and service solutions to offer. Amongst the latter are Epiq Systems, Trilantic, Kroll OnTrack, Applied Discovery, Clearwell, LexisNexis and Wolters Kluwer, who should between them cover pretty well all the bases.

I am going to it for various reasons, none of which, for a change, is a speaking commitment. This session which interests me most is a case study led by Greg Wildisen and Mike Brown of Epiq Systems and by Vince Neicho of Allen & Overy. The title is Your company has just been raided and an investigation is under way. Have you an effective strategy to focus your resources on only the most relevant documents? Read the rest of this entry »

Germany focuses on data protection and privacy

April 1, 2010

Americans may be tempted to think of EU data protection and privacy laws as being an obstacle deliberately placed in the way of conscientious US lawyers who are merely trying to do their job. That reaction is unsurprising, since that is the context in which they come across a set of laws which are remote from their domestic experience. It may help if I point you to four recent articles about Germany, only one of which has a direct connection with electronic discovery. The others may serve to provide a context. Read the rest of this entry »

Gucci v Curveal: a blow for US interests – whichever way you understand that expression

March 26, 2010

British 19th Century “gunboat diplomacy” and the song The Wreck of the Old 97 are what came to mind when I read the latest Opinion of a US court about the relative importance of US interests and the laws of other countries restricting the discovery of private information. Carry on like this, USA, and you may well need a gunboat to support document collections.

The article by the respected US e-Discovery commentator Tom O’Connor Why the Rest of the World Thinks we are Crazy concerns an Opinion of the District Court of the Southern District of New York which orders a Malaysian bank, not party to the proceedings, to produce documents despite a Malaysian statute prohibiting them from doing so. I volunteer to speak on the half of “the Rest of the World” Read the rest of this entry »

Cloud Computing: Privacy, Disclosure and Discovery Considerations

March 10, 2010

There is a free webinar on 11 March callled Privacy, Disclosure and Discovery Considerations stemming from Cloud Computing. It is put on by Wave University and CT Summation and the speakers are Dan Regard of iDiscovery Solutions, Inc., eDiscovery Specialist Reza Alexander and Joseph Baker of Mayer Brown in Washington.

Wave University is an educational platform for legal professionals offering free webinars, ‘lunch and learn’ series and software training webinars.  Any US-based discussion about privacy needs an EU perspective and Reza Alexander, who was until recently the Litigation & Practice Support Manager for DLA Piper UK, will bring an authoritative viewpoint.

The webinar is at 10:00 – 11:00 Pacific Time, 1:00-2:00 Eastern Time, 18:00-19:00 GMT tomorrow 11 March 2010.


Spring Offensive in the eDisclosure War

March 8, 2010

It feels suddenly as if a new phase is opening up in the war to tackle the wasted costs of e-disclosure. If the Rule Committee’s recent failure to grasp the nettle seemed a rebuff, there is a new Spring Offensive coming. A busy week moved us forward on several fronts.

I would have been content for the week with the signing of a new sponsor (Nuix) and the publication of Senior Master Whitaker’s judgment in Goodale V MoJ which, as I said in my article on it Goodale v MoJ – a template judgment for active management of eDisclosure, is as important as a model for e-Disclosure case management as for the fact that our ESI questionnaire is annexed to it and thus made public. There has been more than that, however. Read the rest of this entry »

Anonymisation, the Hague Convention and US judicial notice of EU privacy protection

March 2, 2010

I expressed puzzlement recently at the high proportion of page views from the US over a period when most of my focus has been on the UK draft practice direction. I know, of course, that there is much US interest in developments in other jurisdictions, particularly the UK, and there is an obvious connection between Judge Scheindlin’s Pension Committee Opinion with its huge potential to drive litigation costs upwards, and the focus of the Jackson Report on Litigation Costs which is to drive them down.

It is more likely, in fact, that the recent US interest is based on two of my recent posts which concern the collision between US data demands and EU privacy restrictions. The two articles were Sedona Conference WG6 presentation to Article 29 Working Party in Brussels and The extent of the right to privacy in French employee’s e-mails. Both of these have been picked up by US commentators, and it is likely that the high proportion of US-derived page views come, in part at least, from these articles. Read the rest of this entry »

The extent of the right to privacy in French employee’s e-mails

February 22, 2010

The expression “grasping at straws” has seafaring origins – a drowning man grasps at straws in the absence of anything more solid to cling to. It comes to mind whenever the subject of EU data privacy comes up in the context of US litigation where US lawyers, already drowning in electronic documents, an unrelenting timetable, and the fear of sanctions, will grab hopefully at anything which may save them from the additional difficulties posed by EU privacy rules. They read, for example, of what appears to be a “litigation exemption” and hope that it gets them clear of the whole data privacy problem.

This attitude follows from the feeling that the whole privacy regime is an anti-US device, something invented by Europeans (mainly the French and the Germans) to impede the due process of US law. This perception inevitably generates a backlash, and the language of many US courts implies not merely a defence but counter-attack. I have only just discovered, for example, that a 1987 case called Minpeco S.A. v. Conticommodity Servs., Inc., 116 F.R.D. 517 at 528 (S.D.N.Y. 1987 referred expressly to a “sham law such as a blocking statute”. More recently, the cases of In re Global Power Equipment Group Inc., and Accessdata v Alste appear, to European eyes at least, to imply contempt for the whole privacy business. Read the rest of this entry »

A short video could win you free tickets and accommodation at CEIC

February 17, 2010

The use of video turns up in these pages either where a supplier has used the medium to educate or to promote a product, or in a slightly embarrassed reference to my own reluctant appearances in front of the camera.

CEIC (Computer and Enterprise Investigations Conference) has come up with an interesting new use for the medium. They are offering free entry and accommodation for CEIC 2010 to the person who makes the best short video explaining why the maker wants to go to CEIC. The competition details are here.

CEIC was in Orlando last year. I was there in my capacity as a member of Guidance Software’s Strategic Advisory Board and thoroughly enjoyed it, despite torrential downpours. This year, the conference is at Summerlin in Nevada, so bad weather is unlikely. Read the rest of this entry »

Sedona Conference WG6 presentation to Article 29 Working Party in Brussels

February 16, 2010

I do not usually pass on things sent to me without adding some value (or, at least, some comment) of my own. I will make an exception for a report just in from James Daley, co-chair of the Sedona Conference WG6 Working Group, of the WG6 presentation today to the Plenary Session of the Article 29 Working Party in Brussels.

I will interpose only the briefest of introductions for the benefit of those bewildered by the whole subject,  a group which, alarmingly, includes many for whom it all matters very much, if only they knew it.

The Article 29 Working Party is an independent European advisory body on data protection and privacy, established under Article 29 of EU Directive 95/46/EC. Its tasks include consideration of the conflicts which arise between EU data protection and privacy laws and the requirements of foreign courts and other bodies for documents which may contain private information covered by the Directive. The Working Party issued a document on 11 February 2009 called Working Document 1/2009 on pre-trial discovery for cross border civil litigation (“WP158”).  The Sedona Conference responded on 30 October 2009 with a formal Comment of The Sedona Conference® Working Group 6 to Article 29 Data Protection Working Party Working Document 1/2009. Read the rest of this entry »

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

January 25, 2010

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

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

451 Group reports on IQPC in New York

December 15, 2009

I was not at IQPC’s E-discovery conference in New York last week (see IQPC New York – minimizing risks, costs and challenges). Fortunately the 451 Group’s Katey Wood was there and her report is here.

Two of the points which caught Katey Wood’s eye are of particular interest. One is the session in which Deborah Baron of Autonomy interviewed Karla Wehbe of Bechtel. My article had made the point that client case studies are only interesting if they recount triumph over difficulties. This one seems to have done just that, with sceptical external lawyers now apparently onside and (a much overlooked benefit of in-house control) a proportion of reviewed documents now reusable. My spies tell me that this session was well received – not surprising, perhaps, given the article’s conclusion about “the shifting of roles between e-discovery vendors, service providers, general counsel and law firms as technology moves in-house”.

The other point of interest springs from Katey Wood’s account of the session about collection of international ESI, whose speakers included the well-regarded Denise Backhouse of Morgan Lewis. The sentence about the EU’s fundamental human right to privacy being “literally a foreign concept to those of us accustomed to living under the Patriot Act” is a good way of illustrating how much there is to do to convey to US lawyers that language is not the only thing which is foreign once you cross the Atlantic. Privacy laws and data protection need more than a check-list, as the article says. It would be a good start, however, if the subject did at least appear on the check-lists of those who need to collect data from Europe.

I have yet to see a report about the large judges’ panel at this conference. I will pass it on when I find out what was covered.


Orange Rag: Scottish Civil Costs Review – a missed opportunity

December 8, 2009

John Craske, Head of Business IT at Dundas & Wilson LLP has contributed a guest article to the Orange Rag which hints at disappointment in the Scottish Civil Courts Review.

I wrote briefly about the Report of the Scottish Civil Courts Review on 7 October, shortly after its publication (see Scottish Civil Courts Review), and promised further comment in due course.  I drafted an article about one aspect which interested me – the role of the courts in mediation, on which the Report and I come down on the same side in what has become known as the Woolf v Genn debate – but somehow never quite got back to it.

This was, I think, because there was disappointingly little in the Report about either the use of court technology or about electronic discovery. The report acknowledged the need for better case management, but my overriding feeling, without reading the chunky second part in detail, was that technology, whether of courts or in the hands of parties, had been ducked, with a few laudable statements as to how important it might all prove one day. Read the rest of this entry »

How IT can support judicial reform? asks Dutch judge Dory Reiling

December 2, 2009

How many judges do you know who might write a PhD thesis with the title Technology for Justice: How Information Technology Can Support Judicial Reform, discuss it on her blog, and promise to inform you of its publication by Twitter. Not many, I suspect.

I met Dory Reiling, or Abeline Dorothea Reiling, Vice President of the Amsterdam District Court, to give her full name and rank, when we sat together on a panel moderated by Patrick Burke of Guidance Software at IQPC’s eDisclosure conference in Brussels at the end of September. I wrote about the session in my post Information Retention at e-Disclosure conference in Brussels. Read the rest of this entry »

UK Information Commissioner publishes plain English data protection guide

December 2, 2009

The UK Information Commissioner’s Office (ICO) has produced a guide in plain English which aims to make it easier for the non-expert to understand what is involved. That is all to the good, but this is not one of these situations where tout comprendre c’est tout pardonner.

I thought you wouldn’t mind a bit of French in the circumstances. Those trying to get data from France (or anywhere else in the EU, but France more than most) for use in US proceedings rarely forgive what they learn about the restrictive nature of EU data protection, even when they understand it – perhaps especially when they understand it. Indeed, the expression “Pardon my French”, used by the English to exculpate themselves after using some vile swear word, might well be helpful to those who have just discovered what those implications are – the language which results is often unsuitable for what used to be called “mixed company”. Read the rest of this entry »

e-Disclosure conference thoughts from the 451 Group

December 1, 2009

Although I do my own summaries of the conferences I take part in, it is more interesting in some ways to see what other people take away from them. A succinct summary from an interested party who was present as a delegate picks out what came across as the important strands – if you are organsing and chairing it, the whole thing is important.

Nick Patience from the independent technology-industry analyst company The 451 Group has done a post called e-Discovery conference thoughts in which he highlights a few points from the recent Thomson Reuters e-Disclosure Forum which struck him as being interesting, important or both. I would in turn pick out a couple of those for closer focus. Read the rest of this entry »

Parallel and cross-border developments in handling electronically stored information

November 24, 2009

The second session at the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November was called Parallel and cross-border developments in handling electronically stored information. I was the moderator, although if Air Miles were the qualification for talking about international subjects, Browning Marean of DLA outstrips even me by a wide margin.

The panel comprised Senior Master Whitaker, Mark Surguy of Pinsent Masons in Birmingham, and Josh Ellis, Chief Information Officer at the Serious Fraud Office. I suspect that Master Whitaker has a wider range of knowledge on international case management matters than any other judge in the world; I opened by saying that, in the last six weeks, I have been in Brussels, Washington, Singapore, and in front of the UK Civil Procedure Rule Committee and the only other person present on all these occasions was Master Whitaker. In addition he is, as Senior Master, the channel through which requests under the Hague Convention are made. Mark Surguy was the only practicing commercial lawyer from the UK at LegalTech in New York this year. Josh Ellis, quite apart from his present role at the SFO, was responsible for international collections at PricewaterhouseCoopers for years and was thus able to bring a practical and hands on dimension to the discussion. Read the rest of this entry »

European Commission takes action against UK for data protection failings

November 4, 2009

An article in Document Management News reports on the legal action being taken by the European Commission against the UK for gaps in the legislation required to comply with EU data protection laws. The investigation leading to the action was initiated because of failure to control a specific activity – BT’s trial of PHORM, which tracks web user habits and sends targeted advertising based on what the user is apparently interested in.

The UK usually complies slavishly with EU regulations, with civil servants accused of “gold-plating” the Commission’s requirements, adding refinements and extra burdens mainly as cynical job-creation exercises to keep them and their cohorts (and their cohorts’ descendants) in work. Take the dull little men at DEFRA (the Department for Environment, Food and Rural Affairs, historically a kind of dustbin for those not employable in any other government department) and give them a short EU regulation on, say, horse exports or slaughterhouses and they will (after much generously-rewarded labour), produce a law ten times as long and detailed, guaranteed to increase costs, close down businesses and put people out of work. Their own salaries and pensions, of course, are safe (if you search for “gold-plated” in Google, the results are divided between articles about British civil servants amplifying EU directives and articles about the pensions of those same civil servants). Read the rest of this entry »

Clearing the decks before going to Brussels

September 29, 2009

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 »

New French Data Protection Opinion on US discovery procedures

September 23, 2009

I bet that headline made your heart skip a beat with excitement, as mine did when I saw that the Proskauer Rose LLP Privacy Law blog has a new entry headed French Data Protection Authority releases new opinion on compliance with US discovery procedures. To find “new”, “data protection”, and “French” in the same country would be quite something, never mind in the same heading.

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 »

More than one reason for new FTI Paris presence

September 18, 2009

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.

FTI are among the sponsors of IQPC’s Information Retention and E-Disclosure Management Conference in Brussels on 30 September and 1 October. My own specific reason for being there is that Guidance Software, another sponsor of the conference  (and, like FTI, a sponsor of the e-Disclosure Information Project), has asked me to take part in a couple of panels. I would be there anyway this year for the same reasons as are behind FTI’s European expansion. There are still seats available if you want to join us there.


The UK is well-placed between the EU and the rest of the eDiscovery world

September 11, 2009

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 »

E-discovery double-act on video

August 29, 2009

A few days after advocating the use of YouTube videos to promote new ediscovery understanding, I found myself in one with Browning Marean of DLA. Appearing soon at a cinema near you – well, on anyway.

Saxon swims with stickIf you put a labrador, like my dog Saxon, down almost anywhere – the Moon, say – it does not take him long to find a stick or tennis ball. He does not look for them, particularly, but they just turn up. Much the same is true of me at an e- discovery conference – I wander around, confident that I will soon come across somebody I know or total strangers who seem to know me (which is one up on Saxon who does not generally get hailed by passing tennis balls).

I was walking around the opening party at ILTA 09 having, as I thought, spoken to everyone I knew, when a figure detached herself from a crowd and introduced herself. It was Kina Kim of PivotalDiscovery. com which describes itself as “the community for ediscovery and litigation professionals”. PivotalDiscovery has links to other sites and articles (including, as it turned out, one of mine), a career portal, and an index of events. It also has videos, including some on YouTube, and can be followed on Twitter. Read the rest of this entry »

London meeting of Women in eDiscovery

August 21, 2009

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 »

The information war – news from the front updated

July 9, 2009

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 »

Sedona Conference dialogue on cross-border discovery in Barcelona

June 25, 2009

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 »

US – Swiss Safe Harbor

April 17, 2009

It had escaped my notice that the US Department of Commerce and the Federal Data Protection and Information Commission of Switzerland had established a US – Swiss Safe Harbor Framework. The provisions and procedures are identical to those which apply to data transfers between the EU and the US.

Switzerland understood the commercial, as well as the personal, value of privacy whilst those countries which now make up the European Union were still in that state of near-permanent war which governed their relations for centuries. That war has now been converted into the back-stabbings, media briefings and backstairs jockeying for power which go on in Brussels and Strasbourg, from which Switzerland has stayed aloof.

People outside the EU tend to view it as a single bloc corresponding with its political and geographical boundaries. Whilst that is largely true in global trading terms, the neat picture is muddled by specific national distinctions – each EU country has its own privacy and data protection laws, for example – and is entirely misleading in cultural terms. The picture is confused still further by the fact that Switzerland, sitting bang in the middle of the EU landmass, is not a member of the EU. Read the rest of this entry »

Keeping informed on information about informaton

April 16, 2009

It is getting hard to keep up. The various aspects of information and justice which I write about are developing faster than I can put quill to keyboard.

I wrote my piece An information war at the week-end and updated it when the video emerged of the policeman beating up a woman at the G20 demonstration before posting it today. This morning’s Times carries a piece to the same effect as my article’s comments about protesters turning the tables on Big Brother state, using information as their weapon. There is also an article in the Times today about policemen invoking the Terrorism Act against a man who photographed them in a park (they have been given some re-education on the subject), one about the Damian Green raid (an over-reaction, apparently, according to the Parliamentary Report of yesterday – you don’t say?), and one about the further fall-out from the Damian McBride affair, with questions being asked about searching e-mails to trace the other recipients of the offending messages. Meanwhile, the European Commission has started legal proceedings against the UK for breach of its obligations to enforce EU data privacy laws.

Pretty well every topic I wrote about has therefore been updated by events. Meanwhile, I have seen a headline about Switzerland signing up to safe harbor, a judge has written in the Times today (as I have here) about the Woolf reforms, and there is a Legal IT conference coming up in Montreal which deserves a write-up. Oh, and there is some work to do as well as all this writing.

Some, at least, of all this will warrant further comment. Mr Justice Jackson, as he then was, referred to the issues in the Wembley Stadium case as being like the Lernean Hydra. That, as I am sure you all know, was a hideous creature which would emerge from its murky swamps and terrorise the people. Every time Hercules struck off a head, two more would grow in its place, so the Hydra was a bit like our civil service (and the murky swamps increasingly a metaphor for Downing Street, come to think of it). As I look at all these multiplying stories around the world which warrant reporting, the Hydra analogy comes to mind. I will try to keep up.


An information war – making connections between privacy, liberty, policing, law and government

April 16, 2009

An American e-discovery site put up a link last week to a video showing police brutality. It is not just me, then, who sees connections between apparently diverse aspects of justice. Privacy and the right to go about your business are fast being eroded in Britain. There is a civil war looming, and information will be its weapons. Lawyers and judges will be in the middle of the battlefield.

Gabe’s Guide to the e-discovery universe, an American site dedicated, as this one is, to developments in electronic discovery, put up a link a few days ago to a YouTube video showing a fight at a football stadium in an unidentified country. A man runs across the pitch waving a banner; a squad of policemen bring him down, and one is seen repeatedly punching the already captive protester. The spectators flood the pitch and attack the police, who retreat. The compact between rulers and ruled, which (given their respective numbers) depends on public acceptance of the right of the rulers to impose law and order, has broken down.

We are heading in that direction in Britain. Policemen behave like that because ministers encourage them to think that they and the government which they represent are above the law. A few days ago, a British policeman brutally assaulted a middle-aged man as he walked home from work. The man died a few minutes later. At a memorial protest about that death, another policeman, his identification number deliberately obscured, struck a small woman across the face with a heavily-gloved hand and then thoughtfully and deliberately hit her legs with a telescopic baton. The government and decent policemen (the majority) are as appalled as the rest of us, but it is the government which has created the climate in which a policeman thinks this is the right way to behave. Several elements, tenuously linked to each other, bring us to this. Read the rest of this entry »

How safe is safe harbor?

February 10, 2009

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

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

Safe harbor

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

OutIndex releases E-Discovery engine

January 27, 2009

OutIndex, the electronic discovery software company has added another string to its bow with the release of three Microsoft .NET components to allow others to build their own e-discovery applications.

Between them, the three components provide the tools for extracting metadata, searching data and printing electronic documents and e-mail messages to .TIFF or .PDF. These are the same primary components as those which OutIndex uses in its main processing system. OutIndex’s increasingly informative web site includes a page on its E-Discovery Engine as well as the rest of its widely-scaled product range, from its flagship application OutIndex E-Discovery down to its desk-top application eDiscoveryXpress for in-house processing. Read the rest of this entry »

Epiq opens in Brussels

January 7, 2009

Epiq Systems, Inc. have opened an office in Brussels to provide support for clients involved in pan-European and global litigation and regulatory investigations. Epiq is best known for its DocuMatrix review platform and for corporate insolvency, as well as for litigation work.

An Epiq team will be permanently based in Brussels which, as International Managing Director Greg Wildisen put it, is “in the heart of the European Union and alongside policy-making institutions”. Read the rest of this entry »


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