IQPC Washington Information Governance and eDiscovery Strategy Exchange

August 26, 2012

My next trip to Washington DC (I am there as I write, at ILTA) is for IQPC’s Information Governance and eDiscovery Strategy Exchange which runs from 19 to 21 September at the Marriot Fairview Park. This event is organised by the London-based team which puts on the very successful European eDiscovery conferences, the next of which is in Munich on 27 to 29 November.

As its name implies, this event focuses on strategy. That implies a long-term, proactive and pre-emptive approach to the problems raised by the need to disclose electronic documents for litigation, for regulatory purposes and for internal investigations, and the session titles and speakers reflect this. One of the early panels, for example, is called Closing The Gap Between Legal, IT & Records Management To Ensure An Enterprise-Wide Information Governance & eDiscovery Strategy, to be discussed by, amongst others, Jason Baron, Director of Litigation at the National Archives and Records Administration and Barry Murphy of eDJ Group.

Running my eye down the list of speakers, I see Allison Stanton, Director of e-Discovery in the Civil Division of the DOJ, Mark Yacano of Hudson Legal, David Horrigan of 451 Research, Maura Grossman of Wachtell, Lipton Rosen & Katz, Patrick Oot of the Electronic Discovery Institute and David Shonka of the Federal Trade Commission who will, with many others, cover a wide range of topics both current – the cloud, social media, BYOD and costs – and future with, for example, a panel about technology developments and market consolidation. Read the rest of this entry »


Costs Management moves closer in England and Wales

May 25, 2012

I have already drawn attention to an article by His Honour Judge Simon Brown QC in the New Law Journal called Costs management & docketed judges: are you ready for the big bang next year? which describes what is to be expected by parties to civil proceedings in respect of costs budgets. The takeaway quotation is:

The days of putting in a bill at the end of a case based on a multiple of billable hours x by £x per hour and expecting to be paid are over.

I come back to the subject in case you missed a practical example of costs budgeting in action, with a result which reflects the warnings given by Judge Brown. The case is Henry v News Group Newspapers Ltd (Rev 1) [2012] EWHC 90218 (Costs) (16 May 2012) and the title of a Legal Futures article says it all: Senior Costs Judge disallows budget overrun in landmark costs management ruling.

That article links in turn to an explanation by Andy Ellis, the costs lawyer who acted for NGN. Again, its title tells you all you need to know – Actual – Budget = Catastrophe.

As the Senior Costs Judge explained in his judgment, the case was dealt with under the Defamation Proceedings Costs Management Scheme.

Last in this set of links is one to a Daily Telegraph article headed Hourly billing for lawyers should end, says top judge which reports a speech by Lord Neuberger whose message is clear enough. The central point is reported thus:

[Lord Neuberger said] “Hourly billing at best leads to inefficient practices, at worst it rewards and incentivises inefficiency.”

He said it penalises those who are able to bring cases to a close quickly, adding: “It also penalises the able, those with greater professional knowledge and skill, as they will tend to work at a more efficient rate.

“In other words, hourly billing fails to reward the diligent, the efficient and the able: its focus on the cost of time, a truly movable feast, simply does not reflect the value of work.”

He said: “In practical terms, any business which bases its charges simply on costs does not deserve to succeed, or even, some might say, to survive.

Lord Woolf said something similar in his report which gave rise to the 1999 Civil Procedure Rules. This time, the nettle is to be grasped.

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IQPC Munich eDiscovery themes recur around the world

November 19, 2011

I was not sorry when my plane’s wheels touched down at Heathrow on my return from IQPC’s Information Retention and eDiscovery Exchange in Munich on Wednesday night, bringing to an end 28,000 miles of eDiscovery travel in six weeks. A few hours later, I was on my way to London to talk to a law firm about the UK eDisclosure Practice Direction in the company of Nigel Murray of Huron Legal – the e-Disclosure Information Project back on home turf. Meanwhile, US Magistrate Judge David Waxse, Judge Herbert Dixon and Jason Baron were all on their way from Munich to Washington for the Georgetown Advanced eDiscovery Institute. Within hours of my saying goodbye to Judge Waxse in Munich, tweets started rolling up my screen reporting on his contributions to a judicial panel at Georgetown.

The Problems and the Players

E-Discovery touches a lot of corners. It has multiple players: there are the companies whose data must be found and produced for court proceedings, for a regulatory investigation or for internal purposes, and within the companies are multiple duties and responsibilities which are not necessarily aligned. We have the lawyers who advise them, all too often reactively rather than in anticipation of problems. There are the judges and regulators who manage proceedings and who have an interest in efficient and proportionate outcomes. Lastly, there are the suppliers whose technology and consultancy helps address the problems. eDiscovery has many facets – an ever-wider range of data sources and types, matters of budget and reputation, and overlays of privacy and HR; the issues arise in very similar form in many different jurisdictions.

Conferences like IQPC’s Munich event provide an opportunity for all these people to discuss the problems and the solutions in the sessions, in prearranged one-to-one meetings and in less formal gatherings in bars and restaurants. One must pay a particular tribute to the two US judges mentioned above, Judge Waxse and Judge Dixon, and to the UK’s HHJ Simon Brown QC, all of whom emphasised that they came to learn as well as to speak about the issues which face court users.

Welcome to Munich

IQPC’s European events seem to get more than their fair share of external complications. Two years ago, the ash cloud prevented the attendance of several delegates, speakers and sponsors in Brussels; last year we were nearly snowed in in Munich; this year fog caused delays and, for some, re-routing via Stuttgart. Most of us got there in the end. The venue was the Kempinski Hotel Airport Munich,  a short walk from the terminals, and nothing at all like the picture which the dread words “airport hotel” usually imply. It  is a stylish place, with a big attractive bedrooms, good food, a convenient set of conference rooms and a bar which seemed to have no closing time.

I inevitably come across the occasional minor problem on my travels – screaming brats on planes, setting off without my passport, losing my luggage, or not being able to find a decent cup of coffee or somewhere to smoke. This is the first time, however, that I have heard the receptionist say “We have no booking in that name”, followed by “…and we have a big conference going on” (to get the full flavour of this, you need to imagine that it is very late at night, with cold fog swirling around what may be the only accommodation for miles). Fortunately, they found me a room. The coolness of my reception was washed away by the fact that the bar was full of the agreeable people whom one meets at many conferences. Read the rest of this entry »


UK and US EDisclosure / EDiscovery and Compliance Commonality at IQPC London

May 14, 2011

There was something for everyone at the IQPC Document Retention and EDisclosure Management Summit in London this week. The Bribery Act gave added incentive for those responsible for information management within organisations; at the other end of the process, prosecutors and judges from the US and the UK emphasised that the target is not merely formal compliance with court rules but business objectives and business efficacy; in between, the technology begins to appear – at last – as a tool to support the business and procedural requirements and not, as it used to, as a free-standing objective of its own.

We have also finally eradicated the impression that US judges, providers and practitioners are missionaries come to civilise a backward race. We are all in this together, thanks to four specific facets of globalisation: the need to collect data worldwide and the privacy conflicts which that brings; the fact that the dominating new technology for creation and dissemination of data (of which Twitter and Facebook are but two examples) goes global immediately; the convergence of thinking on court-led procedural matters such as co-operation and proportionality; and now the Bribery Act, matching and exceeding the reach and the implications of the US Foreign Corrupt Practices Act. One US visitor said that she had gone away from a previous conference wondering why she had crossed the Atlantic simply to hear other Americans speak; there are still plenty of them here, but their contribution now brings a world view, not merely a US one, to what has become a much more collegiate group of experts.

As always, I went to relatively few sessions beyond the six in which I took part because I use these events as an opportunity to talk to as many people as possible. I mention this not merely to justify my failure to report comprehensively on the whole conference but to emphasise a hidden value in these events, and an overlooked justification for time taken out of the office. Unclear about some particular technology and whether it its use is likely to be acceptable in a court? Talk to a few people who provide it and then to a judge. Not sure whether your company is ahead or behind others in compliance matters? Have a chat with people who hold parallel roles in other companies. There is much more to these events than one-way communication from the platforms. Read the rest of this entry »


Lord Justice Jackson fights for his costs reforms

January 21, 2011

An article published yesterday in the Solicitors Journal is headed Jackson LJ demands his reforms are implemented in full. It draws attention to a letter from Lord Justice Jackson, the author of last year’s Litigation Costs Review, to Justice Secretary Ken Clarke calling on him to ensure that the costs reforms are put through in full.

The letter itself is published on the judicial website. You get the flavour of Sir Rupert Jackson’s approach from this paragraph:

….. the complexity of civil procedure is now a real problem and generates substantial costs. The new rules must be simple and clear. Any attempt to legislate for every situation is a chimaera, resulting in complexity and escalating costs.

Those who read my article of last week headed Judges defend our long-term liberties from short-term politicians will spot more than one connection here. One concerns the willingness of judges to take on politicians publicly where the interests of justice require it – there are in fact two points in one here, since the publication of Sir Rupert’s letter is a step distinct from the confrontation implicit in the letter itself; the other is the reference to “any attempt to legislate for every situation” which parallels one of Lord Judge’s complaints, reported on in my article and illustrated by his media-friendly reference to the possible variants of a particularly esoteric crime.

It is not clear, in fact, that Jackson and Clarke take different views – Clarke has been supportive, publicly at least. There are certainly powerful interests with good reason to fear the implementation of the proposed costs reforms, and civil servants are skilled in that delicate balancing act which always finds reasons for blocking change whilst creating enough work to keep them in employment.

It is good to see Lord Justice Jackson fighting his corner where a lesser man might have subsided gratefully back into his place in the Court of Appeal.

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Big cases coming for big firms – but what about more ordinary litigation?

January 7, 2011

An article in the Lawyer of 3 January is headed Top firms gear up for action as litigation tsunami hits UK . Perhaps the most interesting point made in it concerns the cost of arbitration with the corollary that the court seems still to be the most attractive option, at least for bigger cases.

As its headline makes clear, the article largely concerns a list of very big cases due for hearing in 2011. What about more “ordinary” commercial litigation, the kind with hundreds of thousands or tens of thousands of pounds at stake rather than millions? The article’s premises – that companies have “exhausted more amenable avenues” for resolving disputes, that they must fight because they cannot afford to settle, and that they are “turning their backs on the arbitration process” almost certainly apply further down the scale. The government has promised a fresh drive to encourage mediation, but the target is primarily the smaller matters. Good legal advice appropriate to the dispute is expensive whatever the forum. No-one is knocking the idea that mediation is the right approach for many cases, but the focus should be on improving the court processes, not on driving litigants elsewhere.

Many companies seem to prefer to litigate – or would do if the costs were reduced or at least made more predictable. Lord Justice Jackson drew attention to the importance of certainty, not just as to the outcome but also as to the costs implications. The lawyers who will win business – by beating their rivals but also by encouraging companies to use the courts – are those who are best able to predict costs and keep within their estimates. Read the rest of this entry »


International discovery, sanctions, ethics and US-UK comparisons at Georgetown

December 8, 2010

I was, I think, the only UK speaker (or, indeed, delegate) at the Georgetown Advanced e-Discovery Institute. If the primary reason for going was to talk about US-EU differences, there was progress made too on the continuing US-UK dialogue about our respective disclosure rules and practice. There is two-way value in seeing how others see us.

A great deal of ground was covered, much of which illuminated the divide between US and UK practice and procedure. I make no apology for the fact that the result is a rather longer article than my usual ones.

Introduction

The Georgetown Advanced e-Discovery Institute is a polite, learned event, some of whose sessions, one feels, may actually change things, not merely report or comment on them. There is certainly a mood for change, in the sense that no-one involved in US eDiscovery believes that the present approach is sustainable. An outsider sees what appear to be obvious places to start which inevitably centre round the points of differences with one’s own jurisdiction and, indeed, the UK rules came in for much positive comment, as I report below. We in the UK, in turn, need to raise the level at which we discuss the issues, and get more people, particularly judges, to engage in that discussion in the manner so impressively displayed at Georgetown. We might then see a convergence between our rules and the way they work in practice.

Any attempt to translate these thoughts into positive recommendations founders on deep cultural differences plus the knowledge that whilst the UK rules may be fit for their purpose, the practice has a long way to go. Do US lawyers and jurists bang on so much about ethics and keep each other in line with sanctions because they are more ethical than we are or less so? Do parties collect so much data because a) they really think that proportionate justice is to be found that way b) because the fear of being sanctioned has driven all reason out of litigation or c) because the lawyers and technology providers make a lot of money that way? Or is it just that the wheel is going round so fast – technology catching up with volumes and driving expectations – that no-one can stop it now?

And is it presumptuous of us from the UK to accept praise for our rules and for the proportionate spirit behind our rules, when so few UK judges take e-disclosure seriously, when parties in big UK cases can still assert that the disclosure of electronic documents is ipso facto disproportionate, and when we have just had to fight a long hard battle to persuade our Civil Procedure Rule Committee even to accept that the subject is worth raising?

Whilst the English say “electronic discovery is something Americans do, and look what a mess they make of it”, Americans say “England is two years behind the US”. Well, I for one will not disparage the US approach any more severely than they do for themselves, and if a two-year lag saves us from the worst excesses of US discovery, then can we have longer please? The reality is that we can both learn from each other.  The dream combination, perhaps, would be the rules of England & Wales managed by the array of US judges who were present at Georgetown. My view is obviously a partial one.

I will try and pick out the subjects which have most relevance across the jurisdictions, either because there are parallels, or because their absence is itself a matter of note. Read the rest of this entry »


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