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 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 »
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.
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 »
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 »
The article to which I am about to refer you is in fact called E-Discovery in the $50,000 Case by Conrad Jacoby and not as my heading shows it.We in the UK renamed the ancient process known as discovery of documents ten years ago and called it disclosure, as part of the frankly stupid idea that if you give something a trendy new name you somehow make it better. Sterling is now so debased as against the Dollar that the difference between 50,000 of the one and 50,000 of the other does not matter much in the context of which Jacoby writes.
How can you handle electronic documents cost-effectively in cases whose value is disproportionate to the work involved in strict compliance with the rules of discovery / disclosure? Many in the UK blame the advocates of litigation support technology, as if we are somehow responsible for creating all this stuff. It exists. It has to be dealt with if you are to comply with the rules. Pretending that your clients and their opponents do not have electronic documents has two outcomes – breach of professional duty, and unexpected costs down the line. Better, surely, to square up to the facts and develop a strategy to handle the documents efficiently. Read the rest of this entry »
Rob’s then e-discovery blog was the first resource I came across when I began to inform myself about US legal and technical e-discovery developments. We have never met, though we must have been simultaneously in the same place at events like LegalTech, but have corresponded over the years.
The resources available from the Unfiltered Orange page include a weekly update e-mail, Twitter and FaceBook. The update covers the Top 25 eDiscovery stories, and if he happens this week to have put one of mine at the top of his list (Distinguishing workplace spying from data collection), that serves merely as a prompt to do something I have been meaning to do for some time, and point you towards his site.
Identifying, culling and filtering the world’s e-discovery stories is similar in many ways to the exercises which they describe – there are a lot of them and not all are worth looking for or looking at. I have the luxury of choosing only those which interest me personally. Rob Robinson’s self-imposed brief is rather wider and I am, as always, grateful for the pointers he gives to the stories which matter.
Like sport and so much else, the idea of proving a legal case by discovery of documents is an old English concept which was adopted wherever the English had a hand in establishing a system of law. America kept it when it dumped our tea, our taxes and our King. Australia adopted it with the same enthusiasm as it adopted cricket. A couple of weeks ago, Hong Kong was host to both the Rugby Sevens and our Senior Master Whitaker talking about UK disclosure developments. Discovery is central to Canadian litigation, and Master Whitaker is due to speak about it in Singapore later in the year.
Three things unite all these countries apart from their common law heritage. The problems raised by electronic disclosure are the same everywhere; those of us involved in developing rules and best practices around the world all speak to each other; and there is a handful of suppliers whose applications are used wherever electronic data must be collected and handled for litigation or for regulatory investigation. The resulting cross-fertilisation has obvious benefits – what works in one place will probably work in another, and if an approach tried in one country is seen to have failed, then it is as well to know about it before another jurisdiction goes down the same track. The things I talk about in Birmingham or Bristol are informed by what I Iearn in Sydney or New York, and it would perhaps surprise UK judges and lawyers to know how much interest there is in those places in what happens in the UK. Read the rest of this entry »
If UK lawyers do not share the US enthusiasm about the preservation, collection and use of metadata, that is in part because they are not clear what it is and how it might be used. A forthcoming webinar will be a painless way to find out.
Guidance Software is hosting a webinar on Tuesday 24 March called The growing importance of metadata preservation in eDiscovery. As the developers of EnCase eDiscovery, whose function is the collection across corporate networks of discoverable documents and data, Guidance has an obvious interest in the metadata – data about data – which lies in and around the documents which may become evidence. Read the rest of this entry »
Litigation support providers from the relatively small UK market made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.
The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.
The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.
There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.
The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:
“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »
One of the benefits of being linked to the companies who sponsor the e-Disclosure Information Project is the opportunity to talk to those who work for them. These are the people who are out meeting with and working with the users, both lawyers and corporate clients, and it is in part from these conversations that I keep in touch with what is happening. They may, flatteringly enough, have called me to ask for my view, but I generally get as much as I give in these discussions. Read the rest of this entry »
Only one practising UK commercial lawyer came to LegalTech in New York. Recession hit the litigation support industry before our eyes. One of the recurring themes there was that the clients are taking discovery in house. Down the road we saw some other extinct species
As if LegalTech itself were not enough, Sunday, my first full day back from New York, lasted for 24 hours, thanks to disrupted sleep patterns, a full InBox and a five hour meeting discussing potential discovery developments in Australia and AsiaPac.
You know better by now, I think, than to expect a dutiful account of LegalTech. You get from me little in the way of faithful reports of worthy sessions, no deep market analysis, no breathless interviews with industry leaders. Others, I know, sit on the special pews reserved for bloggers and have their reports filed before the speaker has made it to the bar. I got to few sessions, although I did turn up, I think, to all those I was booked to speak at. There is no shortage of industry leaders to talk to – you bump into CEOs in corridors or go up to their eyries above cloud level at the Warwick Hotel – but journalistic scoops are not really my style and I am content to wait for the press releases. I am into broader sweeps than the last big sale or the next major release. Read the rest of this entry »
As I sign off for Christmas, I would like to thank all those who have sponsored, supported or in any other way encouraged the e-Disclosure Information Project in 2008 and wish you all a Merry Christmas and a Happy New Year.
It is only a month since I did a round up to cover the Project’s first birthday. Since then, we have had yet a third new e-disclosure case in the UK, Abela v Hammonds, and LDSI has joined the sponsors.
There is already a great deal planned for next year: the conference diary is filling up; my Law Society seminar tour will take up again; there should be a good UK showing at LegalTech in New York; there are plans afoot for co-operation with US, Australian and Canadian judges, rule makers and thought leaders with, I hope; a visit to each of these countries in March/April; there is a Technology Questionnaire to launch and a Practice Direction to draft; I hope to repeat in other UK cities the talk we gave in Birmingham at which we showed judges, barristers and solicitors some of the applications which are used in electronic disclosure; Vince Neicho of Allen & Overy and I are plotting an e-disclosure conference on our own model; with the Project format now established, I am looking forward to yet more interaction with its sponsors; as well as going to see and speak to people on their own patches in the UK and abroad, I hope to entice more visitors to come to Oxford and kick ideas around on Port Meadow, as I have done several times this year. Read the rest of this entry »
A growing theme on this site which will get more important in 2009 is that electronic discovery in the US is getting to be of more interest to us in the UK. This is not because the English courts are getting more involved in e-disclosure (they are, but that is not why we are paying more attention to the US). The new interest derives from US Opinions which have wider and more universal messages than hitherto.
Americans can pound each other to bits over “spoliation” and “defensibility” and we could not be more bored. Nor do we really want to be told how to do it at a judicial level (but we love the technology, thanks). That is in part because there is a growing appreciation that we have some pretty good rules of our own if only anyone would use them, as judges are beginning to – see Digicel, andAbela ( the links are to articles of mine about these English cases). Read the rest of this entry »
Many UK lawyers and judges affect disdain for the American way of litigating and, in particular, for the way US lawyers handle electronic documents. The UK lawyers’ perception that e-disclosure is all very expensive not only confuses cause and effect – it is the existence of the documents which is the primary problem – but blinds them to the constructive criticism which many US lawyers and judges make of their own practice. The problems and most of the (largely US) technical solutions are the same. A look at the similarities in current US thinking might inform our own approach.
The recurring theme in this area in the UK at the moment is the need for two things – getting more and better information about one’s own clients’ documents and a more co-operative approach to working out how to manage disclosure so that the pursuit of justice is not buried by the costs of trying to achieve it. The main stumbling block here is ignorance – there is plenty of expensive gamesmanship being played, but much of the money thrown away is wasted because practitioners know little about the rules and less about the technology. Read the rest of this entry »
Yet another important new UK case on electronic disclosure, Abela v Hammonds, reaches me whilst I am listening to a US webinar about searching. The theme of both is knowledge, understanding and expertise – and co-operation to arrive at a proportionate solution
Men famously do not multitask well, but there is too much going on in e-disclosure at the moment to do things in neat sequential steps. I found myself this morning listening to a US webinar on the courts’ requirements for searches for electronic evidence whilst simultaneously reading a new 70 page English judgment on the same topic. This article is not a deeply considered report of either of them, but the coincidence and commonality is worth capturing. Read the rest of this entry »
The webinar anticipated in this post has now taken place. My report on it, and its fortuitous coincidence with a new UK case, can be found in my post Getting expert evidence in front of the court which also includes a link to the recorded webinar.
H5, the San Francisco company specialising in information retrieval for litigation, investigations and related information management, are giving a webinar on Wednesday 10 December at 1-2 p.m Eastern / 10-11 a.m Pacific time. The full title is Finding a better way to search: Benchmarking E-Discovery Methods.
The premise for the webinar is that lawyers are looking for ways to meet their discovery obligations quickly, cost-effectively and with minimal risk, whilst judges are attaching increasing importance to the way in which searches are conducted – not just the technology but the related sciences of e.g. linguistics and statistics. The perceived importance of this lies in the often-quoted assertion by US Magistrate Judge John Facciola in US v O’Keefe that Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. Read the rest of this entry »
The risk that contentious work might shift to arbitration or to other jurisdictions such as Germany is reason enough for us to fight to keep it here. The Commercial Court Long Trials Recommendations may have had too wide a focus. Attention to the costs of disclosure, with help from a new generation of Early Case Assessment tools and a pooling of ideas with Australia and Canada may be the next step
On 2 December, the City of London Law Society considered the impact of the Commercial Court Long Trials Recommendations at an open meeting held at Freshfields. I usually go to any such events but had not picked up that it was happening – not the only thing I was in the dark about on that day, since someone drilled through a mains cable at breakfast-time and I was without power till far into the night. I would at least have kept warm if I had gone to the meeting. I am grateful to Mark Surguy of Pinsent Masons in Birmingham for a summary of what was said. Read the rest of this entry »
Internet telephony, like litigation technology, is now accessible and affordable. Ignoring VOIP merely passes up the chance to cut your telephone bill. Ignoring litigation technology may cost you rather more. The problems, and the solutions, are the same everywhere
A male who bought his first PC shortly after they first came on the market and who has been a software developer might be regarded with some suspicion when he tries to induce others to use technology. You could look at it the other way, of course, and reckon that if someone imbued with office computer technology since its infancy still finds some of it near-magical in its power, then it might be worth a look.
This was brought to mind by two phone calls I received in close succession across midnight on Saturday. At that time of night it is the middle of the day in West Coast America and early morning in Victoria, Australia. My first call was from Browning Marean of DLA Piper US LLP in San Diego and the second was from Geoffrey Lambert of KordaMentha in Melbourne. Both were by VOIP (Voice Over Internet Protocol) and the total of two hours’ crystal-clear conversation with opposite corners of the world cost none of us anything. Read the rest of this entry »
We at last have a reported case on the scope of a reasonable search for electronic documents and on the duty of parties to co-operate. You do not need case law to validate a clear rule, but Digicel (St Lucia) Ltd v Cable & Wireless has wider implications than its facts suggest, if only in terms of spreading awareness of the rules.
I was once discussing with the US General Counsel of a multinational company the points which distinguish the CPR requirements on disclosure from those of the US Federal Rules of Civil Procedure. The specific subject was the scope of the search which is required, and I was explaining that our obligations under Rule 31.7 CPR were defined by broad notions of proportionality for which the rules provided a set of factors, whose weight was ultimately a matter for the court’s discretion if the parties could not agree. Read the rest of this entry »
The Vikings brought with them some habits which were deplored by their hosts, but they also brought technology which we turned to our advantage. We do not much like some of the practices in US civil courts, but we can certainly use the technology which has been honed in them
On 8 June 793, the first Viking long-ships appeared off the coast of Britain – “ravages of heathen men” said the Anglo Saxon Chronicle, which had recently predicted some such cataclysm. The Vikings did a bit of raping and pillaging and pushed off home. The next year they were back, but were beaten off, retiring hurt with their leader dead, many drowned in a storm and others killed on landing.
Their technology, particularly in ship-building, was way ahead of its time, and improved rapidly to reflect the experience of the sailors and as an aid to the rough and tumble of their work. Not only were the ships able to face the roughest storms, but they had shallow draughts and were light enough to carry, both useful developments which were enhanced to cope with their raids. Nor were their victims an uncivilised and impoverished race – the visitors would hardly have bothered to keep coming back if they had not hoped to profit from it and, however attractive the ladies of the North-East, their charms hardly warranted a risky annual journey. Read the rest of this entry »
Details are coming in of the Masters Conference taking place in Washington on 16 and 17 October. This year’s title is Viewing E-Discovery Through the Corporate Veil – see the Masters Conference web site for more details.
The focus is on litigation in the global arena with the Foreign Corrupt Practices Act (FCPA) as well as the Federal Rules of Civil Procedure (FRCP) at the forefront. Topics include:
Cross Border Investigations and Discovery Management
Cost Effective Internal Investigations in the FCPA Era
Litigation Readiness
Real-life Implications of the FRCP
The Subprime Mortgage Meltdown
Corporate E-Discovery Budgets
New Technologies for Streamlining E-Discovery
Creating and Implementing the Corporate IT Structure
The US courts are laying increasing stress on the technology and the methodology used to find documents relevant to a case. Even US lawyers are pulling the blanket over their heads at the implications of this, and UK lawyers will do the same if we just leave them to read the US judgments. We have a very different set of aims over here, but the technology and the principles developing to meet the FRCP challenge are exactly what we need, just turned to different purposes. The key term is “transparency”.
I have shied away from writing about the judgments of US courts which are the all-consuming subject of the year in American litigation circles. US v O’Keefe, Equity Analytics v Lundin and Victor Stanley v Creative Pipe all deal with the importance of accurate and reliable searches – embracing both the technology and the skill with which it is used – and between them, in their slightly different ways, appear to raise the level of equipment, qualification and skill needed to engage in the business of giving discovery / disclosure of documents. Serious stuff, in a country where so much of the focus appears, to UK eyes at least, to be on the technology and the methodology at the expense of the search for justice – with the emphasis on the word “expense”. Read the rest of this entry »
As the dust settles on the 2008 Socha-Gelbmann Survey, it is perhaps useful to pick out a couple of the conclusions which particularly affect UK corporations, law firms and suppliers. As I have reported elsewhere (Project sponsors ranked by Socha-Gelbmann) those who sponsor the e-Disclosure Information Project were well represented in the rankings tables, with Anacomp, Autonomy Zantaz, Epiq Systems, Guidance Software, LexisNexis and Trilantic all appearing in one or more of the charts (the links, incidentally, are to their respective press releases on the subject).
George Socha and Tom Gelbmann have written a commentary on the market as it appeared to them following this, their last survey in this form. Commentary on commentary does not necessarily add value, but I highlight what they say about analysis, about a perceived shift from services to software and about staffing up to enable law firms to meet the challenges and take the opportunities which exist in this market. Read the rest of this entry »
I have for some time been mentioning Australia as the jurisdiction to watch for developments in court rules and procedures relating to case management and, in particular, the handling of electronic documents.
They warrant a closer look on my part, not least because I have been invited to speak at Ark Group’s Corporate eDiscovery Conference Preparing your organisation for eDiscovery in Sydney on 13-15 October 2008. My main subject will be Responsibility for eDiscovery, which allows me to bring together sources as diverse as the UK Commercial Court Recommendations, the US Qualcomm sanctions case, the recent US cases (O’Keefe and Victor Stanley) on the use of search technology, and the express requirement in Australia to the effect that lawyers who appear before the courts ought to know something about relevant technology or get suitable help when they do not. Read the rest of this entry »
I had hoped by now to have written up the talks which HHJ Simon Brown QC and I gave to two groups of judges in the last two weeks, but time is against me and a short summary will have to do for now.
The audiences were first the Designated Civil Judges and then the Specialist Judges. The e-Disclosure Information Project, of which this site is the most obvious tangible output, began as an exercise in helping judges at the junction of two technical subjects – the CPR and technology. The first of these has been unchanged since 2005, but remains shrouded in a mystery which it does not deserve. The second changes all the time. My role is to try and unshroud the rules and to help introduce the technology to those who need it or who need to know about it if proportionate orders are to be made about disclosure. Read the rest of this entry »
Although the conferences referred to here were both in London, they were not specifically about electronic disclosure in the UK. There was plenty, though, to interest those on both sides of the Atlantic, not least the possibility that part of our approach might be exportable
Jason Baron, the US National Archives’ Director of Litigation and a well-known commentator on all things to do with electronic disclosure / discovery, has beaten me to a full commentary on two of the conferences which I attended recently. Since he has done it so well, and since I am still out of my office speaking more than I am in my office writing, I will gratefully point you to his excellent article A Tale of Two London ESI Forums on Ralph Losey’s e-Discovery Team site.
US Magistrate Judge the Honorable Andrew Peck here makes his third appearance in this blog in as many days, following his appearances at the IQPC Information Retention and E-Disclosure Management conference last week.
There is a note about his reputation as one who moves cases along at a blinding pace in my post Guidance on benefits of e-Disclosure and there is a report of his attitude to pleas about EU privacy laws in Whose discovery rules would you rather break?. He also had some useful observations about the conduct of discovery in US courts which, although different in so many ways from our own (right down to having apparently different meanings of the word “proportionality”), nevertheless have enough in common for judicial commentary to travel well – in both directions. Read the rest of this entry »
Damned if you do, damned if you don’t is the dilemma which faces many who are responsible for document production simultaneously in more than one jurisdiction. The subject was covered in some of the sessions at IQPC’s Information Retention and E-Disclosure Management conference in London last week, most comprehensively in an interesting hypothetical situation run by Tracey Stretton of Kroll OnTrack and Tahir Khan of Addleshaw Goddard involving a complex set of international transactions, transatlantic implications, litigation and regulation all in one go.
I will not attempt a summary – just to mention it is enough to remind you that those multi-jurisdictional elements require a multi-dimensional approach, and not only in multi-million Dollar claims. Read the rest of this entry »
How useful are keywords in refining document populations? They can be a blunt instrument, but it may be proportionate to use blunt instruments as long as everyone involved is aware of the method used. What does it all mean to the man on the Birmingham omnibus?
It may be reasonable to search some or all of the parties’ electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.
This passage comes from Paragraph 2A.5 of the Practice Direction to Part 31 CPR where it is part of the expanded definition of the scope of a reasonable search. It is all a bit clunky, really, in that this part of the PD was a belated add-on to Rule 31.7 CPR (the duty of search) and actually repeats part of that section. At the least, it is tiresome to have two overlapping sources for the same obligation. At worst, this is one of the reasons for the tacit agreement to ignore the whole subject which has been the norm hitherto. Read the rest of this entry »
Do the UK courts ever question the manner in which electronic evidence was collected? It is a source of much contention in the US but we have little case law directly on the point here. It is clearly vital to get it right, and equally clear that not everyone does, but why do we not hear more about it?
I listened to a webinar last week. Moderated by Patrick Burke, Assistant General Counsel at Guidance Software, it covered the steps which companies ought to take to be ready for litigation or for a regulatory investigation. Guidance has more than a passing interest in the subject, since their EnCase software is perhaps the best-known of the products which allows a company to take an image of an entire drive or of targeted documents and other data which may be required for disclosure. The speakers were at pains to stress that EnCase is not the only available solution.
I was one of them, bringing a UK perspective to the discussion. The others were Don Little, Corporate Counsel for Rolls Royce in the US, and John Rosenthal, Co-Head of the e-Discovery Group at Howrey LLP. Guidance are sponsors of the UK-based E-Disclosure Information Project which I run – my sponsors have in common that they are all interested in the UK rules, the trends and best practice in e-Disclosure, not just in selling things.
His Honour Judge Simon Brown QC of the Birmingham Mercantile Court went to New York last week to take part in a judicial panel on the subject of eDisclosure. The resulting debate should make audiences sit up on both sides of the Atlantic.
We are well used to US judges coming to London to tell us how discovery of documents is managed in US courts. We hear from them what works and what does not work, what problems they encounter, and what methods they are evolving to deal with them.
You might think it rather odd that we have to import foreign judicial talent to tell us about a concept we invented, but I have heard more US judges speak here on the subject than English ones. This year I have been involved in the planning of a few e-Disclosure conferences. The draft programmes usually contain a hopeful slot marked “Judges Panel”. A somewhat paradoxical reason given for the absence of judges willing to speak is that they see too much emphasis in the UK conference programmes on the 2006 Amendments to the US Federal Rules of Civil Procedure.
Let’s just recap on that: the only judges willing to speak on e-Disclosure are American ones who necessarily speak about the FRCP. English judges don’t come and speak because there is too much about the FRCP. The expression vicious circle comes to mind. Read the rest of this entry »
The LegalTech cud is still being chewed. The graph below show page views on this blog down to today, with an encouraging upward trend. The actual visits are not huge in absolute terms – 163 page views on one day last week is the record – but interest seems to be growing in what has been a minority activity in the UK.
That, incidentally, is the point of publishing the graph – we do not have many pointers as to how many people want to know about the subject. We know that many suppliers seem busy enough, but there is no composite figure for that. The readership of a single-issue web site gives us some feel for the level of interest.
The aim, of course, is to make this a mainstream activity for anyone who litigates here with any volume of electronic data, and the blog is only one of the initiatives which are in hand. There are a number of conferences planned in which I am involved in various capacities – as co-chair, facilitator, speaker or writer. There is bigger emphasis on the UK perspective in this year’s London-based international programmes, quite apart from those which focus exclusively on the CPR. I am happy to field any interest in these conferences and to point you in the right direction for whatever your interests are. Read the rest of this entry »
My first port of call in New York last week was Patrick Burke, Assistant General Counsel at Guidance Software. I did a webinar with Patrick over Christmas (Americans don’t really do Christmas I discover – the last e-mail in on Christmas Eve came from Patrick, as did the first one of Boxing Day) and it was good to meet him at last after the hours of discussion we had about that.
I first came across Guidance Software at the IQPC conference in London last May, when Victor Limongelli (now CEO of the company) gave a talk which impressed because of his sure grasp of the UK court rules. Regular readers will know that I focus closely on the matching roles of rules and technology as weapons to keep the costs down, and it is rare to find any supplier, still less a US one, who articulates that viewpoint. Read the rest of this entry »
As in previous years, Trilantic organised three sessions for the last day of LegalTech. They are generally less formal than the other sessions and, as I have said elsewhere, take important subjects with a light tone.
I thought I would summarise what was said, but cannot in fact do so because I got an e-mail a few minutes into the first one, offering an opportunity to see someone whom I very much wanted to meet. My account of the sessions will necessarily be light on content.
The first one was called International eDiscovery Rules, Standards and Challenges. The Moderator was George Socha and the panelists were Browning Marean of DLA Piper, Laura Kibbe of Pfizer, Vince Neicho of Allen & Overy and Michelle Mahoney of Mallesons Stephen Jaques. Read the rest of this entry »
The sanctions judgment in Qualcomm v Broadcomm emphasises for UK lawyers the apparent conflict between their duty to ensure that their clients give full disclosure and their parallel obligation to keep disclosure proportionate. The two duties are not in fact irreconcilable, but it can be hard to see that and harder to achieve it. This article looks at what the judgment actually covered.
My article Predicting Litigation Responsibility for 2008 was written overnight on January 7. Allowing for the 8 hour time difference between Oxford and San Diego, it was written at about the time that Magistrate Judge Barbara Major was delivering the judgment in which she sanctioned Qualcomm Inc. to the tune of $8,568,633.24, and reported several of Qualcomm’s lawyers to the California State Bar. Although it is the sanctions which caught the eye, what the judge said about the responsibility of individuals is perhaps more important. Read the rest of this entry »
A good e-Disclosure conference will make you want to know more or, at least, will ring an alarm bell in due course. There are pitfalls to know about and practice development opportunities being missed.
I am just back from a conference in London organised by Marcus Evans with the title E-Discovery and Document Management Strategies. The fact that I was one of the speakers does not disqualify me from saying that it was one of the best I have been to.
I will write separately about the session which I shared with His Honour Judge Simon Brown QC and which was, as you might guess, about the scope which the CPR gives to willing parties and an active judge to bring down the time and costs of e-disclosure.
Nor will I here try and summarise what each speaker said – it would be invidious to pick out any of them in what was a well-balanced programme, Actually, I will make one exception and pick out Browning Marean of DLA Piper US LLP, who displayed his usual knack of giving a near-universal viewpoint which transcends national boundaries and applies equally to large and small cases. It comes down to knowing your stuff and anticipating costs. Read the rest of this entry »
A mock eDiscovery hearing yesterday in front of real judges would have put UK litigation lawyers on notice of rough rides ahead if they are less than fully prepared to justify what has been done or not done to control the time and expense of Discovery. Where was the audience?
I have never been to a legal technology conference where they have to hold the crowds back with ropes. That, however, was the scene which greeted me as I approached the New Connaught Rooms in London yesterday for ALM Events’ show T3 Trial Tactics & Technology.
It turned out to be a double-booking – all those podgy girls in black tights and the skinny youths clutching musical instruments were there for the first auditions of Britain’s Got Talent. Perhaps Simon Cowell or Ant and Dec would pop up and give their view on the talent on the next floor, where ALM had gathered a large crowd of experts from both sides of the Atlantic under the title Confronting litigation and globalization of your data. Read the rest of this entry »
Richard Susskind’s long-term prediction that the work of lawyers will break up into “identifiable and discrete pieces” applies here and now to electronic Disclosure. The discrete stages of first identifying and culling, and only then analysing, document populations do not require either the same tools or necessarily the same people to perform them economically.
Professor Richard Susskind’s new book The End of Lawyersgets an outing in The Times this morning, with an invitation to readers to comment on his predictions. I doubt that the Times will take 1,250 words by way of comment on one narrow aspect of Susskind’s chieromancy, so I will put them here. The narrow aspect in question is e-Disclosure / e-Discovery. In that area, at least, I agree with him. Read the rest of this entry »
The request coincided with the opportunity to organise e-Disclosure training for judges on the IT implications of making Disclosure orders at Case Management Conferences in UK litigation. The conference seemed a good way of telling corporate court users about what we were doing – I go to a lot of these conferences and few of them carry the e-Disclosure story beyond the stage where documents are being analysed by the lawyers. Read the rest of this entry »
The article, by Robert Ambrogi in Law Technology News, is called EDD Bytes to feed your firm’s knowledge and is a jumping-off point for the key sources on electronic Discovery.
You wouldn’t want to sit down and read them all at a sitting, but it is a useful place to pick up a feel for what the key issues are in the US. This is important not just for the old idea that what happens there will happen here one day, but for the opposite – learning what to avoid by watching someone else go first.
This matters at a detail level – what applications work and which do not, what court rules in the FRCP help the process along and which help foul it up – but also with the broader picture. As with other aspects of Anglo-US relations, there are deep cultural differences hand in hand with the many similarities. Those of us who are keen to encourage e-Disclosure must be as alert to these as well as to the technical matters.
The skills and tools developed for urgent regulatory compliance and forensic analysis have benefits for cost-effective electronic Disclosure in litigation.
I am just back from the Electronic Evidence and e-Discovery forum run by AKJ Associates, a two-day conference at which a stream of experts scared the hell out of companies by telling them about the perils of data control, the consequences of inadequate data control, and what they could do either (and preferably) to minimise the risks of potential problems, or to handle actual problems.
The speakers fell into three main categories – in house experts telling us what they have done, suppliers with products or services to address the issues, and academics to talk about the theory. If there was a heavy emphasis on selling the solutions – well, many of the attendees will have been grateful to know that there are solutions. Read the rest of this entry »
At first sight, a ruling made in Delaware last week appears to predict the end of e-Discovery. A closer reading reveals a terminological confusion and the common-sense conclusion that clients will find a different way of resolving their disputes if lawyers and courts do not speed up the process of getting to judgment. It applies in the UK as much as in the US
One of the difficulties faced by those of us interested in the courts’ role in managing e-Disclosure is the lack of reported outcomes of Case Management Conferences. We know from his speeches that Master Whitaker, the most active proponent of judicial intervention in this area, feels somewhat alone. We know that there are few new players exchanging their Disclosure information electronically. But CMCs go on behind closed doors as, generally, do the costs arguments afterwards.
They do things differently in the US, we think, and so they do. Very differently, to judge from a ruling made last week at a Scheduling Conference in the US District Court for the District of Delaware. Regular readers will know that I am an advocate of pragmatic approaches (within the Rules, of course) for finding the point where speed, accuracy and cost converge in the interests of getting a case heard justly. The Delaware judge has pragmatism. It took some re-reading, however, for me to appreciate it. Read the rest of this entry »
The US courts are coming down heavily on inadequate Discovery of e-mail and other electronic sources of information, and accepting few excuses for non-compliance with the Rules. Events in a far away country of which we know little (as Chamberlain said of the German invasion of Czechoslovakia) or something to take note of in the UK?
The US Information Governance Engagement Area draws my attention to a white paper by InBoxer, Inc which draws together more than 50 US court rulings about email archiving and electronic disclosure under the amendments to the Federal Rules of Civil Procedure (FRCP). Together they show the courts’ increasing unwillingness to tolerate excuses offered by parties for Discovery which is incomplete, inaccurate or slow. Read the rest of this entry »
If the parties fail to agree on the handling of electronic sources of information as required by the Practice Direction to Part 31 CPR, the judge might impose his own ideas on them. The result may please neither side.
This article concerns a US case. Assume for the purposes of reading about it that the US “meet and confer” concept and the court’s powers to make discovery orders are similar in principle, if not in detail, to those given in our CPR. Read the rest of this entry »
Reza Alexander of DLA Piper UK LLP is perhaps the most knowledgeable UK expert on the implications of the recent e-Disclosure amendments to the US court rules. I will point you in a moment to an article by him, but first a little background….
If you don’t understand the acronyms in the heading, you are probably on the wrong web site. The Civil Procedure Rules, or CPR, is the body of rules, practice directions and protocols which govern the conduct of cases in the High Court and County Courts of England and Wales. The Federal Rules of Civil Procedure, or FRCP, is the Federal equivalent in the US. Read the rest of this entry »
OutIndex, makers of low-cost software which imports and processes mail files and electronic documents, invited some top US e-Disclosure experts to speak at their Legal Technology Summit yesterday. English judges are showing increasing interest in using their CPR powers to order the use of technology to cut down Disclosure costs. The software supplies the means, and the judicial pressure gives the motive, to think again about e-Disclosure.
Define what you want from litigation software. I don’t mean the all-singing-all-dancing systems for your star cases, I mean something which allows you to hack quickly – and routinely – into your clients’ Outlook and Lotus Notes mail files and their folders of documents for a first-pass review. 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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