Evidence, privacy and proportionality at Lawtech Europe Congress in Prague

January 30, 2014

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

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

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

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

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

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

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

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


Speeding up police forensic investigations and reducing bail periods

June 7, 2013

AccessData has been working with the UK’s Royal Military Police Service Police Crime Bureau to speed up their forensic investigations. In addition to the obvious benefits in efficiency and reputation, there are pure cost gains.

The UK government has recently been trying to reduce the time and expense of dealing with “the law” in its various forms. To those of us whose primary focus is civil litigation, this government intervention has taken the form of restraints on costs, engineered by strengthening judicial control of case management, by limiting recoverable costs and by an express emphasis on proportionality. The reforms have been accompanied by cuts in civil legal aid and in front-line court staff, with obvious implications for the efficient working of civil justice.

At the same time, there are battles going on about the right to bring judicial review proceedings and about the availability of legal aid in criminal proceedings.  There has been much criticism of the proposals on broad grounds to do with access to justice, but much of the attack has been based on the Ministry of Justice statistics and on the mismatch between the government’s alleged targets and those who will suffer by the changes.   Critics (of whom I am one) say that, quite apart from any arguments about justice or fairness, the alleged savings seem to take no account of the consequential costs of the changes – the hearings prolonged because of unrepresented parties, the actual and social costs of the anticipated increase in convictions, and the other things which flow when the  system goes into paralysis.

Meanwhile another and more specific debate is going on about the length of police bail, something which has attracted attention as a result of police activity against high-profile figures involved in phone hacking, and in unacceptable sexual activities alleged against faded celebrities. Many of the suspects have had their houses raided at dawn, something else which has excited adverse comment as we question whether a senior newspaper executive or 80-year-old BBC “personality” is going to do a runner if given notice of impending arrest. We agitate on their behalf when they are bailed for months or even years, with the stigma and the pressure hanging over them whilst the police proceed with their procedures. Read the rest of this entry »


CY4OR signs partnership agreement with Guidance Software for EnCase Enterprise

December 14, 2011

UK-based forensics company CY4OR has reached an agreement with Guidance Software under which CY4OR will offer and support Guidance Software’s EnCase Enterprise Platform. This is a logical development for CY4OR, building on their nine-year history of forensic investigations and collections work which has already brought them into corporate electronic disclosure with a website dedicated to that part of their work.

A glance at the information page for EnCase Enterprise will quickly show why CY4OR has gone down this route. The passage about ….

a proven, cost effective method to investigate HR related matters (such as corporate policy violations, harassment complaints or computer misuse allegations), IP theft, fraud, computer security incidents and more

… ties in with and extends CY4OR’s established skills in this area of forensic investigation. The ability to collect data from servers and workstations on the corporate network without disruption to the business is important for both cost and time reasons – investigations of this kind almost invariably require urgent, if not instant, attention, but business must go on whilst it is happening.

Related as I am to both companies through their respective sponsorships of the eDisclosure Information Project, I look forward to hearing how the partnership goes and will report back when it has had a chance to bed down.

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Epiq Systems White Paper: From Start to Finish – what actually happens to my clients’ data?

November 28, 2011

Anyone describing their services to a prospective client has a limited bandwidth (measured in time, concentration and the amount of detail which can be imparted and absorbed) available to them and, in focusing on the primary features and benefits, often skips the practical matters which will arise. The builder quoting for your attic room will concentrate on the design and the materials, and not describe the months of dirty boots going up and down your stairs; your property lawyer will not go into details of packing, removals and services disconnection when describing the conveyancing process; the surgeon will spare you the gory details of scalpels and clamps which will be used in your impending operation.

This is not necessarily a matter of concealment – to the expert doing this sort of thing all the time these minutiae are inevitable, and describing them seems to add little to the client’s expectations. Much the same can happen when an eDiscovery provider is describing its services and software: the focus is on the business case, the functionality and the output, with the front end of the process reduced to terms of art like “preservation”, “custodian” and “processing” which do not necessarily mean to the audience what they mean to the vendor.

I come across this when I speak to law firms. Those who invite me in to talk to them have very often already seen more than one demonstration, and have varying degrees of understanding and acceptance of both the need and the benefits of engaging one of those whom they have seen . A recurring question, however, is “What actually happens to my clients’ data when I instruct a software and services provider?”. They envisage, perhaps, the day when they will ring up a client and advise them that the disclosure in their case should be managed electronically. “All right”, says the client, perhaps, “What happens now?” Read the rest of this entry »


The KPMG Preservation Order: it couldn’t happen here….I hope

November 27, 2011

In writing about the US case Pippins v KPMG (see KPMG Judge Kicks the Sisyphean Stone of Proportionality Back Down the Hill) I made a point of emphasising that “one must… be careful up to a point in commenting adversely on rules of another jurisdiction”. I also made it clear that my comments were not directed at the judge but at the rules as they have developed.

Mine was therefore a policy view rather than a taking of sides, a conclusion that if the Magistrate Judge was correct (as to which I have no informed view) then my outsider’s opinion of the legal context was that, as Dickens’ Mr Bumble put it, the law is an ass. My support for the position taken by the amici who have joined in the appeal was based more on sympathy with their broad propositions than with the facts of the case. I want them to to be right and to win because I entirely buy the idea that decisions like this will cause lawyers “in an over-abundance of caution [to] feel obligated to follow the broader standard preservation adopted by any court” as one of the briefs puts it.

As one might expect, the case has aroused strong views, none clearer than those expressed by Craig Ball in a forthright article called A Good Decision Brings Out the Bullies – a title which tells you which side Craig takes. His analysis takes the key facts, a less-than-complimentary examination of KPMG’s actions, the reasons in forensics and evidence terms why the hard drives which were the subject of the application ought to be preserved, and a sprinkling of references to the rules.

The briefest recital of the facts, for those who are starting here, is that a claim has been brought against KPMG by current and former associates who say they were deprived of overtime payments. KPMG chose to collect 2,500 hard drives used by potential claimants. This, they now say, is costing them significant sums and puts them at risk that the data thus preserved will become subject to legal holds in other cases. Read the rest of this entry »


Guidance Software adds Data Reuse Feature to EnCase eDiscovery

November 10, 2011

There are two reasons for referring you to the latest additions to Guidance Software’s EnCase eDiscovery. The first is the addition of functionality to identify and reuse data which has already been collected, allowing searches of data collected for previous litigation or investigations. The second is the video which Guidance has released to explain the new functionality, a model of simplicity and clarity.

EnCase eDiscovery is Guidance Software’s flagship application for network collection of data from across all or any of a company’s data sources. It has moved on from mere collection (not that collection is trivial) to include legal hold, first-pass review, pre-collection analytics and other tools to enable decisions to be made quickly and early in the litigation or investigation. The reality for many companies is that the same custodians and the same time-frames recur in multiple cases – however wide or narrow the definition of a “key player” (itself an open question as a result of the KPMG case) the relevant decision-making and information-flow in most companies lies in relatively few hands. Companies therefore find themselves collecting the same data over and over again.

The data reuse feature is designed to minimise this. However efficient a collection is in terms of network traffic (and Guidance prides itself on this) the ability to make use of existing stores cuts down the traffic and speeds up collections, particularly from mobile workers. I will demonstrate my own commitment to data reuse by pointing you to an article about the new feature by Evan Koblentz at LTN.

Guidance Software has been revamping its website which is now one of the best, with simple navigation to the main headings, clear divisions between different types of information and an understated colour scheme which catches the eye precisely because it does not scream for attention. This extends to the video which Guidance has released about the new data reuse feature, whose simple illustrations (backed by a sober narrative from Russ Gould, Director of Product Marketing) convey so much more than the breathless excitement endemic in most American marketing materials.

I was present at the meeting of Guidance Software’s Strategic Advisory Board when this development was first discussed and, as with other recent developments from the company, it is interesting to trace a new feature from its origins in user requests through to release.

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CY4OR and Manchester’s Deans Court Chambers Forensics Seminar

September 28, 2011

In the nick of time, I note that forensics and eDisclosure experts CY4OR are joining forces with Manchester’s Deans Court Chambers for an evening of presentations and discussions about digital evidence, starting at 5:30pm on 29 September – that is, today.

The speakers are Keith Cottenden, CY4OR’s Forensic Services Director, and Joe Hart, barrister of Deans Court Chambers.

The subjects to be covered include:

  • What electronic evidence may exist and can aid your case
  • How to secure that evidence
  • Technological advances in digital forensics
  • How digital evidence is presented in court
  • Recent case studies

Little or nothing is taught about digital evidence in the formal part of the education of solicitors or barristers, yet an increasing number of cases – commercial, criminal, matrimonial, employment and most other things – may turn on evidence from computers, smart phones and a wide range of other things. This is an opportunity to find out something about it and to meet up with others with a professional interest in the subject.

It is not too late to book a place. The registration details and a link to a flyer about the event can be found here.

Incidentally, CY4OR publish a useful email newsletter (which is where I came across this event). You can subscribe to it from their home page.

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