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.


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.


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.


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 »

Berezovsky v Abramovich – refusal of enhanced disclosure order in the Commercial Court

October 31, 2010

A decision about edisclosure made in the Commercial Court by Mrs Justice Gloster DBE in August has recently been published on BAILII. The case is Berezovsky v Abramovich , the pleaded sum at stake exceeds US$3.5 billion, and the allegations made by both parties are serious ones of dishonesty and impropriety. The application was made before standard disclosure had taken place for what is variously called “train of enquiry” or “Peruvian Guano” disclosure, referred to by the judge as “enhanced disclosure”. No formal application was in fact made and no evidence was filed either in support or in answer. It seems unlikely that the judge would have reached a different conclusion if such evidence had been before her, although her rejection of the application was based in part on its lack of particularity.

The judge did, however, helpfully set out the sort of evidence which a court might expect on such applications, namely:

  • i) what documents or categories of documents might be regarded as liable to be searched for, or disclosable, in accordance with standard disclosure procedures;
  • ii) what wider or different categories of document would have to be searched for if an order for enhanced disclosure were to be made;
  • iii) any indication as to the nature of the searches that would have to be carried out, or the extent of the relevant universe of documents, if an enhanced order were made, or the difficulties, if any, that the conduct of such a search would impose on the parties; and
  • iv) any indication of what inquiries, in relation to which issues, such an order for disclosure would require.

The judgment is short and I will leave you to read the arguments for yourself. The key points, to my eye, include the following: Read the rest of this entry »

Lessons from Applied Discovery Proportionality panel in Toronto

October 31, 2010

It sounds a bit flippant to say that I went to Toronto for breakfast. It certainly would not do as an answer to the immigration official asking the purpose of my visit. Readers with long memories may recall two earlier occasions when I nearly made it to Canada and failed. Since then, I have been back to Australia, and spoken in Singapore and Hong Kong, leaving Canada as a big gap in my close-up view of the common law jurisdictions which require discovery of documents in litigation (the other gap is New Zealand, which I hope to remedy soon). I jumped at the chance when Applied Discovery invited me to a breakfast panel session in Toronto called Understanding Proportionality.

Canadian flag and CN TowerThe moderator was Crystal O’Donnell of Applied Discovery, whose white paper entitled Proportionate Litigation was launched at the event. What you need to know from that, by way of introduction, is the new Rule 1.04 s 1.1 which took effect on 1 January and which says this:

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

If you are tempted to think that this is just a statement of the obvious, you may care to read the 17 pages which Lord Justice Jackson devoted to the subject of proportionality in his Final Report on Litigation Costs starting at page 27. He says this (at paragraph 5.16) à propos his proposed changes to the UK rules:

“The rules should also provide that the fact that costs were necessarily incurred does not make them proportionate. This should be stated explicitly….”.

Once you see a distinction between costs “reasonably incurred” and those which are “proportionate” you see more to proportionality than merely being reasonable.

Crystal O’Donnell had assembled a first-rate panel. Master Calum MacLeod of the Ontario Superior Court of Justice occupies a position as judicial thought-leader equivalent to that of Master Whitaker in the UK. Kelly Friedman of Ogilvy Renault is Chair of Sedona Canada. Susan Nickle is from Wortzman Nickle a specialist ediscovery practice which describes itself as “the go-to law firm in Canada, assisting corporations and their counsel to find practical ways to meet their ediscovery obligations”.

One of the themes running through the session was the need to find the “golden nuggets”. I propose to adopt the same approach to reporting on the session, picking out, without attribution, the passages with the widest general application. Unsurprisingly, they are ones which recur in every relevant jurisdiction. Read the rest of this entry »

London litigation support party coincides with eDisclosure Practice Direction launch

October 1, 2010

I believe that it was a coincidence that almost the entire UK litigation support industry gathered at the Larder in Clerkenwell on the evening before eDisclosure Practice Direction 31B passed into the rules. I do not mean that the presence of dozens of  EDD people in one pub simultaneously was the result of random chance – Bill Onwusah of Hogan Lovells and Jack Bond of Dewey & LeBoeuf fixed the venue and sent out the invitations at about the same time last year. What I mean is that the date was not fixed with the PD’s launch in mind.

The PD was, nevertheless, a recurring topic of conversation, as you might expect. Most of those present were busy and had been increasingly so for some time – as you know, I like to see the whites of their eyes when they are asked how business is going, and I believe that there is plenty of work around. I don’t think this is directly related to the practice direction – that (as I keep saying) is a reaction to the existence of electronic documents, not the cause of them. It is generally felt that the PD will encourage more people to handle their clients’ electronic documents electronically, but that it is because it has engendered more knowledge about cost-effective ways of doing the job, not because it is driving lawyers to do it against their better judgement just because that is what the court expects.

There are a few like that, of course, and I heard reports last night of lawyers muttering about more upfront burdens. I have come across at least two people who carry a copy of my article Over-estimating both costs and risks in the eDisclosure Practice Direction to hand over when this argument is heard. That is what I wrote it for. Read the rest of this entry »

E-Disclosure and E-Discovery at home and abroad

September 14, 2010

I have given my first law firm talks since the Edisclosure Practice Direction became official and have started talking to my sponsors about its implications for them – the questionnaire gives them a useful and early role, if they are ready to give help to lawyers who need it; the speakers for my international judicial panel for the Masters Conference in October are booked; other autumn conference plans are moving forward. The new season is well under way.

I will come on to these things in a moment, including a quick digest of some points from the PD which may not be immediately obvious. They are not the only reason why there has been a gap since my last article: I have been off on my summer holidays – well, it was a long weekend really, and not that long, just half a day tacked onto a weekend before I had to get back for an interview. Maybe next year.

Orford Castle and ChurchMasts at OrfordPagodas at OrfordWe have been at my mother’s house at Orford on the Suffolk coast.  The word “defensibility” means something rather more tangible in Orford than it means in ediscovery.  Orford Castle was built between 1165 and 1173 and its keep dominates the skyline still. On Orford Ness, a narrow strip of land between the River Alde and the sea, secret military tests were conducted from the 1930s onwards, first on radar and later on cold war weaponry, for which purpose the curious Pagodas were built. It was also the home of a post-war over-the-horizon radar station for an Anglo-American system called Cobra Mist, abandoned in 1973. Orford Ness lighthouse may have been the source of the lights reported in the 1980 Rendlesham Forest UFO sightings, and attributed at the time to triangular flying objects – the only known example of someone demonstrating their technology and not following it up with a sales call.

This was a brief hiatus before activity picks up on both domestic ediscloure and international ediscovery. The UK’s Edisclosure Practice Direction comes into force on 1 October, and I have given my first law firm talks on the subject to one of those good regional firms which, I have suggested, have everything to play for in document-heavy litigation. That type of work used to require large teams and other resources available only to the biggest firms. The practice direction should see an end to the “brute force and ignorance” approach to edisclosure; the cudgel should give way to the stiletto, as firms learn to use the rules and the technology to narrow the disclosed documents as early as possible down to those which matter or which matter most. The practice direction requires [paragraph 6 (2)] that technology should be used in order to ensure that document management activities are undertaken efficiently and effectively. You do not need to be a big firm to handle large volumes, just aware of the tools which exist and (just as importantly) how to use the rules and the cases to meet the clients’ objective – which is not usually disclosure for its own sake. Read the rest of this entry »

Recommind Webinar 16 June – Earles v Barclays Bank

June 14, 2010

I am doing a webinar with Jason Robman of Recommind on Wednesday 16 June at 16.00 BST. It is called The Impact of Earles v Barclays Bank on UK Corporations. Registration is here.

Some of the UK e-Disclosure cases recently have been lightly amusing tales of incompetence and stupidity. Earles v Barclays Bank is, I think, the only one which actually has the word “incompetence” in it, but it is far more important than some of the music hall turns we have seen in the courts in the last few months. If the headline point was that a successful party had its costs severely reduced for disclosure failures, it swept up along the way questions like the extent of the duty of preservation, litigation readiness and legal hold, neither of which has seen much developed law in the UK.

Its messages are for companies and not just for their lawyers, and go back into the way in which they keep documents, not just into the conduct of the litigation.

I am doing a session tomorrow at the Ark Group eDisclosure 2010 conference with the judge who delivered the judgment, HHJ Simon Brown QC and with Vince Neicho of Allen & Overy. It is called Earles v Barclays Bank: a client’s guide to avoiding adverse inferences, wasted time and costs and damage to reputation. I think it safe to say that I will have had enough of Earles for a bit by the end of this week. Those with large document collections and any potential for litigation will not have that luxury.

Do join us at 4.00 on Wednesday afternoon.


E-Disclosure in Liverpool with Cats Legal, Epiq Systems and Dominic Regan

June 4, 2010

I have to take back what I said yesterday about my rail trip to Liverpool. I had expected the usual shambles, those delays with risible explanations and insincere apologies which are the norm on our overcrowded, badly-run rail network. In the event, the trains ran on time and the connections went smoothly. The new government’s warning to Network Rail directors about their obscene bonuses will obviously not keep their noses out of the trough, but may force them to pay some attention to the poor sods who have to travel with them.

A point did arise about my journey, however, which relates directly to something which came up at the e-disclosure seminar which was its purpose. It concerns transparency of pricing and the potential user’s uninformed expectation as to the costs of engaging any litigation software or services provider. My expectation from the railway bookings web site was that my return ticket would cost £247 (a three-hour journey, followed by three hours performing on my feet, followed by a three-hour journey back, warrants a first class seat, away from the unwashed masses dribbling dogburger slime down their chins whilst they boast loudly of their sex lives on their mobile phones). Face-to-face across the counter, however, the ticket seller told me that, by adjusting my departure time a little, I could get the ticket for £134, and now that I go back and look more closely, I see that this information was buried on the web site.

The point is that I only found out the true cost by speaking to somebody, and it was very much lower than I expected. This came up during the seminar when Cats Legal and Epiq Systems made it clear that many of the jobs which they do are for relatively small matters and for fees which are low relative to what can be achieved and what can be saved. The only way lawyers will find that out is by ringing up a supplier (or preferably more than one), outlining the task, and asking for an estimate. Armed with that estimate, they can make proper decisions as to the most proportionate route, decisions which inform internal strategy as well as discussions with opponents and the court. You need this information also when the boot is on the other foot and your opponents argue that proper electronic disclosure would be too expensive. That may be true, but if they have not sought quotations, how can they make that assertion? Read the rest of this entry »

Terms of Reference for Australian Discovery review

June 2, 2010

I have already reported that the Australian Attorney General has commissioned a review of  discovery laws. We now have sight of the formal Terms of Reference which embed the purpose of the review firmly in the title – “to improve access to justice”.

Their brevity may mislead one into thinking that the Terms of Reference are narrow in ambit. As with Lord Justice Jackson’s terms of reference, the opposite is true – this review is as broad in scope as it could be. Note the recurrence, even in this short document of the phrase “as early as possible”:

…requiring parties to identify and disclose critical documents as early as possible

…ensure key documents relevant to the real issues in dispute are identified as early as possible

…obligations on practitioners and parties to identify relevant material as early as possible

You cannot miss the point there, can you? Read the rest of this entry »

Party with a purpose at the poolside

May 26, 2010

I am told that there is record attendance at CEIC 2010 here in Las Vegas. Putting it like that implies no doubt on my part that the claim is correct, but this place is so vast that you could lose half the UK civil service (there’s a nice thought) in it, so assessing headcount by eye is quite difficult.

The numbers became clear at the welcome reception last night, the biggest poolside party I have ever attended (not that poolside parties on any scale are that common in Oxfordshire).  You get some idea of it from the photographs.

Red Rock pool from aboveCEIC 2010 float

Last night it was packed, with endless supplies of good food and drink. The quality of the company matters most, of course. There seemed nothing incongruous about discussing with a US Magistrate Judge (Judge Andrew Peck) the implications for US interests of Gucci v Curveal in such surroundings, or catching up with software company CEOs, like Victor Limongelli of Guidance Software, Eddie Sheehy of Nuix (whom I saw in London last week and will see again in Sydney in a few days time) or Andrew Sieja of Relativity, perhaps the only boss of a world-class software company who sits personally at a keyboard puzzling out how to make the search experience better for users. Read the rest of this entry »

Court of Appeal declines to overturn specific disclosure judgment in Fiddes v Channel 4

May 16, 2010

Those interested in judicial management of disclosure might like to look at the judgment of the Court of Appeal in Fiddes v Channel 4, delivered on 24 March but published on BAILII only on Friday.

The case is interesting for several reasons: it is an e-disclosure case; it is a libel case, thus showing that e-disclosure pops up everywhere; it involves the other Jackson, the late Michael; it considers questions of proportionality where the cost (in this case of examining backup tapes) is balanced against the likely value of what might be recovered. More important than all this, it shows a Court of Appeal upholding a judge’s decision although far from convinced that they would have arrived at the same conclusion as he did. Read the rest of this entry »

Imminent reform in prospect for Australian discovery process

May 14, 2010

Reform of the discovery process in Australia is said to be “imminent”, according to an article in the New Lawyer. The article says that the Attorney General has asked the Australian Law Reform Commission to explore options to promote the early and proportionate exchange of information and evidence in court proceedings with an emphasis on the role of the courts in managing discovery by using their case management powers. My thanks to Simon Price of Recommind for drawing my attention to the article.

The article refers to the experience of international jurisdictions. Those of us concerned with improving the court process are enthusiastic about the exchange of ideas between jurisdictions, particularly where the system of law is similar to ours. Lord Justice Jackson visited Australia as part of his fact-finding tour before writing his Preliminary Report, and we studied the Australian Electronic Technology Practice Note CM 6 when drafting our own new practice direction and Questionnaire. Read the rest of this entry »

E-Disclosure law, practice and technology in one educational package

May 13, 2010

The first of the E-disclosure seminars organised jointly by Professor Dominic Regan and me took place yesterday at Ely Place Chambers. Dominic and I were joined by Senior Master Whitaker and by speakers from three technology providers, 7Safe, Legal Inc and FTI Technology to bring together the law, the practice and the technology in one afternoon session.

The expressed rationale for the e-Disclosure Information Project is to bring together all those with an interest in making electronic disclosure efficient and cost-effective. That crossover is important –  knowledge of Part 31 CPR and its practice direction is a good start, and the increasing number of cases involving e-disclosure failures send a strong warning to lawyers. Lord Justice Jackson drew attention to the need for more active case management by judges, and the proposed new practice direction and ESI Questionnaire raise the temperature on that front. Meanwhile, the technology reduces in cost as it increases in capability and, if properly used, maps well to the steps which parties and the court must take together, first to decide on the scope of disclosure and then to achieve it. The case management itself must be proportionate to what is involved. Read the rest of this entry »

The 2010 Duke Conference on US Civil Litigation

May 4, 2010

No one with any interest in the US Federal Rules of Civil Procedure could be unaware of the debates which have been going on about the costs of civil litigation and, in particular, of discovery. A conference is being held on May 10 and 11 at Duke Law School, Durham, NC to consider new empirical research by the Federal Judicial Centre and other data and papers prepared by lawyers, judges and academics.

Chief US Magistrate Judge Paul Grimm kindly tipped me off today that the materials for the conference are available on a public website which contains a mass of material relevant to the discussions. Read the rest of this entry »

Recommind research shows UK companies not ready for e-Disclosure

May 4, 2010

I spent much of today digging out quotations from judgments whose theme was inexcusable e-Disclosure failures, which I need for a paper which I am writing. We have had a run of cases in the UK where significant costs have been incurred which fall, often on an indemnity basis, on the party which is in default of its obligations. My focus is not so much on the rules, important though they are, as on the waste of time and costs which follow inevitably from the failure to get a grip pre-emptively or at an early stage. My drafting exercise is taking a long time, not because examples are hard to come by, but because there are almost too many to choose from.

In some of the cases, it is hard to decide whether the failures were the result of incompetence, ignorance, or the hope of concealment – and that is really the point: if documents have to be dragged out of you, then it is unsurprising if you find yourself accused of bad faith. When the remedy, in the form of fast and efficient processing tools, lies to hand but has been ignored, then the imputation of concealment will hang over you when you are forced to admit that you do, after all, have documents whose existence you have hitherto denied. If a fraction of the money thus wasted had been spent in getting to grips with managing document collections, then the stories would have been very different. In one case, the indemnity costs payable by the defaulting party amounted to £1 million, that is, their opponents had demonstrated the waste of at least that sum for their work in pressing for proper disclosure. I am concerned at several levels, not least because I am paying for much of this as the taxpayer funding an evidently incompetent government department, but I am concerned also for litigation generally. Read the rest of this entry »

ILTA Insight 2010: lawyers risk becoming just part of the clients’ process

April 28, 2010

The most powerful single message from ILTA INSIGHT 2010, held in London yesterday, was that lawyers risk becoming merely part of the clients’ processes in a slot marked “insert lawyer here”. Technology must become part of the lawyers’ business processes, and not merely an adjunct to them.

St Pauls CathedralILTA INSIGHT 2010 took place yesterday at the Grange Hotel St Paul’s Hotel. Peggy Wechsler and her team put on an interesting programme, as ever, at an event which always manages simultaneously to be friendly but challenging. ILTA’s scope is much wider than my own specialist subject, e-Disclosure, embracing every aspect of bringing technology to the business of being a lawyer and, in consequence, has a delegate contingent which is wider than I usually see. There is a greater emphasis on law-firms-as-businesses, which tends to be side-lined at pure e-Disclosure conferences. It deserves a place there – the internal decision-making about this aspect of the litigation process should be driven as much by the firm’s own costs as by those incurred by the clients.

The British election has so far not thrown up a single defining slogan, that killer combination of words which simultaneously captures the mood and skewers an opponent. Abby Ewen of Simmons & Simmons came up with one at an ILTA INSIGHT session led by Charles Christian of Legal Technology Insider and the Orange Rag blog. The context was the identification of things which lawyers are good at, as opposed to all those other things which they do as part of their traditional work for clients and to the (relatively novel) idea that they are running a business. Abby said that  “not much of what lawyers do is all that clever stuff they went to university to learn”. It was important, she said, to “try and extract the things which lawyers are not very good at”. The corollary to that is that the clients are only interested in those things which the lawyers are good at, so that they, and the charging rates which go with them, are applied only when necessary. Read the rest of this entry »

Chris Dale and Dominic Regan on e-Disclosure at Ely Place Chambers on 12 May

April 26, 2010

Professor Dominic Regan and I will lead a session on electronic disclosure at Ely Place Chambers, 30 Ely Place, London EC1N 6TD on Wednesday 12th May 2010. The event starts at 2.00pm and will run until 5:15pm

The Chambers notice about this event is here . The cost is £80 + VAT, a total of £94. Application should be made to the Chief Clerk, Chris Drury

This is the first of an intended series of talks around the country. Dominic Regan is Visiting Professor of Litigation at City University, and is well-known as a speaker on all aspects of litigation, and particularly on costs. He will talk about the law and I will cover the practical aspects of handling electronic disclosure in a climate which, thanks to the recent cases, brings enhanced risks to reputation as well as in relation to the actual conduct of the case on behalf of the client.

Of particular interest at the moment is the ESI Questionnaire annexed to Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009), one of the topics which we will focus on.

Lord Justice Jackson has highlighted the value to practitioners and judges of education in this area, including the benefit of actually seeing some of the types of applications and hearing about the services which are available to help tackle the problems.

We will be accompanied by suppliers of some of these tools and services who will between them cover the different stages of collection, processing and review.

There are practice development opportunities here as well as mitigation of risk. This is a good opportunity to get up to date in an area which is growing in importance.


Cable & Wireless beats off Digicel claims

April 16, 2010

Cable & Wireless has beaten off Digicel’s claim that its entry into the Caribbean telecoms market was deliberately and wrongfully blocked by Cable & Wireless.

According to an article in the Guardian, Cable & Wireless Communications wins legal war with Digicel (thanks to Dominic Regan for pointing me to this) Digicel succeeded on only one head of claim, with damages assessed at just £2. The newspaper also reports that the costs bill to be picked up by Digicel will be £25 million. I am never clear where newspapers get these figures from, but it is reasonable to suppose that the number will be a large one.

For those of us interested in electronic disclosure, the final outcome of the case is of less significance than Mr Justice Morgan’s judgment of October 2008 in relation to Digicel’s applications for specific disclosure. The judgment records that £2 million had been spent by Cable & Wireless before this before the judge ordered that existing searches be redone using his choice of keywords and that Cable & Wireless should immediately have discussions with Digicel about giving disclosure of 800 backup tapes. Whether or not that figure is right, there must have been considerable wasted costs to say nothing of time. Read the rest of this entry »

Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public

April 15, 2010

The Court of Appeal has castigated a Minister, the Treasury Solicitor, and a serving army officer by name, for disclosure failures in a judicial review application derived from the Iraq war. You do not need such an elevated cast of players nor so important a subject for such a public humiliation to be visited on you.

I suggested in one of my turn-of-the-year predictions that 2010 would see individuals, both from clients and from their lawyers, being named personally in judgments about failures to give disclosure properly. I had in mind the judgment in Earles v Barclays Bank Plc, and suggested that those charged with disclosure might care to consider the possibility not only that their firm’s name might appear in the same paragraph as the word “incompetent” but that they might have a walk-on part of their own. We have yet to see the judgment in Shoesmith v Ofsted & Ors, but it is reasonable to expect that some stronger word than “incompetence” will appear in relation to named individuals responsible for a disclosure exercise which not only failed to uncover seventeen very relevant drafts of a key report, but which included an instruction to delete all documents containing highly material keywords. It is unlikely, you would think, that a personal reputation could sink lower.

If you think that, take a look at the judgment in Al-Sweady & Ors, R (on the application of) v Secretary of State for the Defence [2009] EWHC 2387 (Admin) (02 October 2009) and at what is said about the principal witness on disclosure matters for the Ministry of Defence:

Accordingly, if [insert your own name here] continues to be put forward as a principal or even a significant witness in judicial review proceedings or if he is in any way responsible for disclosure, it is our view that any court seized of those proceedings should approach his evidence with the greatest caution.

I would work quite hard to ensure that the name in that sentence was not mine. Read the rest of this entry »

Hear Master Whitaker at ILTA INSIGHT 2010 on 27 April

April 14, 2010

ILTA INSIGHT 2010 takes place on 27 April at the Grange St Paul’s Hotel.  INSIGHT 2010 is ILTA’s 5th annual event in the UK and brings a pocket-sized and UK-focussed version of the excellent main ILTA conference, which I go to every year in the US.

It is an opportunity to hear from leading technologists and business strategists, from the UK and the US, who will share their expertise on matters of great interest to the legal profession. The main event so far as I am concerned (I am allowed to say this in an e-Disclosure blog) is a session called Technology as a Component in Lord Justice Jackson’s e-Disclosure Recommendations in which Senior Master Whitaker and I will discuss the technology aspects of e-Disclosure developments in England & Wales. In this area of case management, you cannot separate the operation of the rules and the use of technology – you have only to look at Master Whitaker’s own judgment in Goodale v Ministry of Justice (I wrote about it in Goodale v MoJ – a template judgment for active management of eDisclosure) to see that some understanding of the available technology solutions is required by judges and practitioners alike. This point was made by Lord Justice Jackson in his recent Report on Litigation Costs, whose only express recommendation on the subject was for education. The Jackson Report, the proposed new Practice Direction and ESI Questionnaire (the latter was annexed to the Goodale judgment) and some other recent cases will all be covered in our session.

There is plenty else going on, as the ILTA INSIGHT brochure shows. Other sessions include: The Evolution of Office, Traversing the Generation Divide, Business Processes (BPM, BPA and BI), The Future of the Traditional Desktop, 21st Century Collaboration, the Electronic Working in the RCJ, Electronic Evidence – Preservation to Production, and a presentation by LITIG on their Review of Case and Matter Management Systems.

There is no fee for law firm and law department professionals to attend this event, but space is limited.  Registering online at, or by e-mail to Peggy Wechsler at


LSB OK for BSB’s ABSs and LDPs under the LSA – what does it all mean?

April 10, 2010

I don’t really do cutting edge when it comes to reporting legal developments. Sometimes there is a story worth running on the day – one software supplier buys another, or an important judgment comes out. Occasionally I get a tip-off and have the story ready to publish as it happens, like the Ofsted one a few days ago. For the most part, however, I am content to let things happen, assimilate the comments of others, dig out some original sources, and try and fit it all into a context relevant to case management or e-discovery.

One development which has been on my To Do list for a while is the growing possibility that barristers might overhaul solicitors in getting on top of electronic disclosure. It has long been foreseeable that clients would begin to challenge the historic model for handling litigation documents; that model involves the solicitors requiring that the clients hand over their documents, which the solicitors then search through both for evidence relevant to the issues and for disclosure purposes.  The conventional solicitor approach to this is to throw waves of assistants at the problem, like Douglas Haig at the Somme, whilst lobbing bills at the client. That approach is dying, mown down by the twin enfilade of client resistance and the growing realisation (elegantly expressed by Lord Justice Jackson) that “proportionate” and “necessary” do not mean the same thing when you come to consider questions of costs. Read the rest of this entry »

A week of positive opportunities in e-Disclosure

March 27, 2010

There are two reasons for running a week’s worth of reports and comments into a single article. The least meritorious of them is that I will not keep up with it all if I do not do a composite post. More positively, that is because a lot has been happening and I can better convey the sense of that in a single article. The overall message is one of positive steps forward, not merely defensiveness.

The previous week ended with a session run jointly with Andrew Haslam of Allvision at a medium-sized firm with a strong regional base and a London office. It is exactly the sort of firm which I have written about as holding the key to the future, at least in my own narrow ambit – agile, versatile, staffed with lawyers trained at the big city firms, and hungry for quality litigation work. It is the sort of firm which, if it makes alliances with the right providers of litigation services and invests in the skills, could take on much bigger firms at a cost lower than theirs, partly because their costs and charging rates are lower and partly because of the way they run their litigation. I will spend any amount of time with firms like this, because they get it, and could change client perceptions about how litigation should be managed.

I covered the background — the framework of rules and cases, the implications of the Jackson Report, and where we stand with the proposed new practice direction and ESI Questionnaire. Andrew Haslam spoke about the technology which is available and what a firm needs to have in place as processes and connections to be able to run with anything which comes along. In the pub afterwards, one of the solicitors told me frankly that he had come to the session expecting to be unconvinced but, having heard us on the subject of the ESI Questionnaire, intended to send it to his opponents in a particular case first thing on Monday morning. A result, I think. Read the rest of this entry »

Reasonably accessible tapes in cartoon and Court of Appeal

March 26, 2010

I resist passing on all Tom Fishburne’s wonderful Case in Point cartoons which he does for CaseCentral – this is supposed to be a serious place, and I don’t want Fishburne eclipsing my own occasional forays into the lighter side of e-Discovery.

Like all the best cartoons, this week’s is both telling as well as funny:

Importance of backups

It is also, as it happens, very timely, coming in the week where the Court of Appeal has actually had to consider a point about reasonable accessibilty of back-up tapes – the case is Fiddes v Channel 4 and I will write about it as soon as I can find a public version of the original judgment. Briefly, the judge decided against ordering the disclosure of some hard-to-access tapes on grounds of proportionality and the Court of Appeal upheld his judgment.

It does not matter what it is which makes people think about the subject – a cartoon and a Court of Appeal judgment have equal weight at that level.


Talking rather than writing – normal service will be resumed soon

March 24, 2010

The relative silence on these pages recently does not imply that I have run out of things to say (sorry about that) merely that I have had a good run of being out and about, or making plans for future events here and abroad. All good, all interesting, and all indicative of a rise in interest in e-Disclosure / e-Discovery amongst those who need to know about it, but not consistent with much considered writing.

Gucci America v Curveal has not passed unnoticed, and there is an article coming up which invokes 19th Century British gun-boat diplomacy and The Wreck of the Old 97 as parallels for the US approach to trifles like the laws of other countries. Another article, consistent with my current theme about objectives being more important than processes, shows how a PR agency can be 100% successful in getting its client’s name out there, whilst making it deeply hated – the SEO is great, chaps, but the effect is wholly negative.

All this and more when I get back from the third in my sequence of post-Jackson talks in London. Tomorrow’s one is to ALPS, the Association of Litigation Professional Support Professionals, in company with Vince Neicho of Allen & Overy – an important and knowledgeable audience. There is one more after that, on Thursday, at which I am listening rather than speaking, and then I am back at my desk for a bit and can catch up.


A flying visit to Edinburgh

March 22, 2010

The spate of blog posts last week-end was a clearing of the decks in the knowledge that I would not have much writing time for a bit. The Edinburgh trip which is the subject of this post is being followed by some in-house sessions for lawyers, and when there is a choice between talking to people and writing, the talking comes first. I also had to take every last stick of furniture and cabling, right down to the router, out of my office so that it could be  decorated and, after 11 years in the same room, that takes some reassembly.

I was in Edinburgh on Tuesday, speaking to the Scottish Society for Computers & Law with Ian Manning of Raposa Consulting and Nigel Murray of Trilantic. Trilantic organised it, and kindly invited me to take part. The law technology commentator Charles Christian of the Orange Rag has rather unfairly labeled me as the Ancient Mariner of air travel on the basis that I no sooner book a flight than either the prices plummet or the airline announces a strike. This is the first time, however, that an airline has actually ceased trading between my booking the ticket and take-off. Shortly after I was invited to go to Edinburgh, a small airline announced the opening of a route from Oxford to Edinburgh, and the price, the convenience, and the wish to support a local venture caused the suspension of my usual caution and my loyalty to British Airways. If someone ever offers to fly you from just up the road to where you need to be for £49 each way, then the offer is almost certainly too good to be true – and so it proved. The airline suspended flying in days, and I ended up as usual in my branch office, the BA Executive Lounge at Heathrow’s Terminal 5. Don’t even ask about the return journey.

In between, however, it was a good trip. Ian Manning and I went to see one law firm which gave us a feel for the climate and the context – you can read all you like about a jurisdiction, but you have to go there to begin to understand those things which are the same and those things which are different. Read the rest of this entry »

7Safe eDiscovery networking event on 15 April

March 19, 2010

7Safe is holding an eDiscovery networking event on Thursday 15 April at The Hoxton Hotel, 81 Great Eastern Street, London EC2A 3HU at 6.30pm.

It is to mark the official launch of their hosting of Anacomp’s CaseLogistix, one of the document review tools which was used by Anton Valukas, the examiner responsible for the recent report into the collapse of Lehman Brothers (see my articles about the Lehman Report and about the alliance between 7Safe and Anacomp).

I have a two interests in going, since both 7Safe and Anacomp are sponsors of the eDisclosure Information Project, and a third if you count the fact that I am speaking at the event. I see that the invitation is careful to distinguish between that part of the evening and the “fun” which is to be provided along with the refreshments.

If “fun” slightly overstates the entertainment value to be derived from listening to me talking, these are certainly interesting times, as I hope I will make clear. It may be premature to suggest in March that Senior Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009) is the e-Disclosure judgment of the year, but it certainly puts pressure on those who think that they can simply ignore electronic documents as being too difficult or too expensive to handle. Read the rest of this entry »

Vector Investments: successful claimant made to pay for unhelpful disclosure

March 14, 2010

Is quite rare to come across UK cases where the quality and costs of disclosure become the subject of a reported judgment. In rare cases such as Digicel, Earles or Goodale, disclosure is either the primary subject-matter of the judgment or is a sufficiently important part of it that (if the judgment is reported at all) we get to hear of it.

Judgments must, in fact, be made every week which record adverse comment, or adverse costs orders, against a party which has failed to comply with its disclosure obligations. Whilst these are often to do with under-disclosure (that is, a failure to disclose that which ought to have been disclosed) it is just as important to know of cases where one party imposed an unnecessary burden on the other by over-disclosing or by the manner in which the documents were presented to the other side. The only reported case I have ever come across on this pre-dates the 1999 rules and, indeed, the days of electronic documents.

Vector Investments v Williams [2009] EWHC 3601 (TCC) (05 November 2009) is of the latter kind. I conclude from the references in it to “files” that disclosure was given on paper, which itself raises questions, but not those which came up between the parties. It is a judgment of Mr Justice Ramsey in the Technology and Construction Court. The main interest as to costs generally lies in the judge’s consideration of the liability for costs following a compromise and a Tomlin Order. The only outstanding point for determination was the assessment of costs, and the judge felt obliged to consider the whole subject of the principles applicable to assessment of costs. You can get the flavour of it from a sentence in paragraph 71 which reads “How should the court approach cases where a claimant has made offers which do not comply with Part 36 and which have been beaten by the claimant as a result of settlement?”. Read the rest of this entry »

New e-Disclosure articles on the SCL website

March 14, 2010

The website of the Society for Computers & Law has two new articles about electronic disclosure.

One is by barrister Clive Freedman of 3 Verulam Buildings and is called Disclosure: the Proposed Rule Changes. It summarises succinctly the elements in Lord Justice Jackson’s Final Report relating to disclosure and to electronic disclosure – I make that distinction because the labels serve to separate the principles which apply to the scope of disclosure and the court’s role in managing disclosure (on the one hand) from the elements which relate specifically to the disclosure of electronic documents (on the other). In practice, since the vast majority of documents to be disclosed are electronic, this distinction may seem unimportant. Lord Justice Jackson, however, treated them under separate headings and, for the moment at least, discrimination between the “what” and the “how” is a useful one, although they are, of course, interlinked – the third question “how much?” introduces cost into the equation, as proportionality demands that it must. Read the rest of this entry »

Standards and outcomes: Hitler, the NHS, the police, social workers – and e-Disclosure

March 13, 2010

My heading, I appreciate, looks like the components of some random word game. There is in fact a connection, and it is to do with the supremacy of result over procedure and of destination over the journey. Hitler, the NHS and rest are called in aid as demonstrations because both came under my eye last week without their place in the jigsaw being immediately apparent to me. What really matters in disclosure / discovery is the outcome in terms of evidence considered by the parties and the court, not mere compliance with standards apparently imposed by the rules. The client is interested in the outcome, as are victims of crime, abused children and hospital patients. Rules matter, but they matter less than the end-result. Read the rest of this entry »

Free use of Equivio Early Case Assessment Software for up to one million documents

March 12, 2010

Equivio is offering to make its early case assessment application Equivio>Relevance available to a limited number of participants in what they call the Equivio>Relevance Challenge – see the press release and sign-up page for details.

Most lawyers can understand the basic concepts of keyword search, if only because they do it every day with Google. Because one can generally find something out of the mass with a Google search, it is tempting to assume that throwing a list of keywords at disclosure / discovery data will reduce the volumes of data to be reviewed – and so, of course, it will. Many lawyers will understand, or at least be aware of, the idea that a keyword search is flawed as an approach to identifying relevant documents, not least because “relevance” turns on many factors beyond the incidence of a particular word or words in a document – correspondence between fraudulent conspirators will contain neither “fraud” nor “conspiracy”, to take a trite example. Read the rest of this entry »

New web site for Asia-Pacific

March 8, 2010

I can see why it has taken some time to assemble their new website following the acquisition of CCH Workflow Solutions in November 2009. The integrated business now covers a very broad range of activities across a wide geographical area, and that alone must have taken some time to assemble in a website with a new corporate identity.

What they have done in addition, however, is taken a great deal of trouble to explain to site visitors what the purpose is of the activities undertaken by the integrated business. Each section – e.forensics, e-discovery, e.courts, bureau services etc – begins with a section called “what is …” where so many sites appear to take it for granted that their visitors understand these things. In basic marketing terms, the number of law firms and corporate clients who do not understand is greater than the number who do. All are affected by the same demands and pressures, not least those of the court rules. A provider who bothers to explain the purposes of the various functions is likely to be attractive to new clients as well as existing ones. Read the rest of this entry »

EnCase Portable brings data collection to your desktop

March 8, 2010

The idea that a law firm might keep a copy of Guidance Software’s EnCase Portable in a drawer for on-the-spot collections leads into a discussion about how much a firm needs to know.

I will let Guidance Software speak for themselves about EnCase Portable via their web page about it, the descriptive information about EnCase Portable Version 2 and the press release which says that it is due to be released in late March 2010.

I am, as always, more interested in how new developments can help lawyers to understand what these applications can do as a technical matter, and to see how they might take control of parts of the eDiscovery process where it makes economic sense to do so. The point about EnCase Portable is that it allows lawyers and their clients to undertake rapid data collections without outside help. My general proposition that most lawyers do well to have a stable of experts – people whose skills, prices and individuals they know – on whom they can call quickly. This applies particularly for the collection stage which is both technical and the foundation for everything else – foul that up and what follows is inherently flawed. Read the rest of this entry »

First law firm commentary on Goodale v MoJ

March 8, 2010

Congratulations to Tim Constable of Matthew Arnold & Baldwin who seems to have been the first solicitor to get out some information to clients on Senior Master Whitaker’s judgment in Goodale v Ministry of Justice.

His article E-disclosure – the new questionnaire gets its first outing was published during Sunday morning. The judgment was published only at the end of last week.

There is a perception in some quarters that electronic disclosure is of relevance and interest only to very big City firms and their clients. It is important to get across to such people that nearly all commercial clients create, receive and keep their documents in electronic form. Solicitors who are on top of this, as Matthew Arnold & Baldwin appear to be, deserve to win clients as a result, and are entitled also to expect the courts to keep up with them.

As it happens. Matthew Arnold & Baldwin was the first law firm to whom I ever gave a legal technology presentation, in March 1993. They were ahead of their apparent peers then, and seem still to be so.


Legal Efficiency Supplement in the Times

March 8, 2010

I mentioned in passing in my post of last night that  I am to interviewed by Dominic Regan for a special report which Raconteur are publishing  on Thursday 25 March in The Times newspaper. Called Legal Efficiency,  it will look at, amongst other things, Lord Justice Jackson’s Report on the costs of Litigation, technology such as that required for e-disclosure, and litigation funding.

The report will consider how both law firms and general counsel can improve their efficiency to reduce costs, save time and improve results. It will discuss the way law firms bill their clients, the changing role of barristers chambers, alternative business structures and legal process outsourcing. The report will also look at the emergence of litigation funding to bring access to justice for smaller claimants/ defendants as well as increasing efficiency for larger companies. It will look at ATE and BTE insurance from the perspectives of the Jackson Report and those whom it affects. Finally, there will be specific treatment of e-disclosure, document review, early case assessment, business continuity, workflow management and other technology for law firms and corporate legal departments alike.

Going out on the same day as The Times’ legal section, it should be a very informative awareness piece, which will undoubtedly receive a lot of attention that is very timely indeed.


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 »

Goodale v MoJ – a template judgment for active management of eDisclosure

March 5, 2010

The publication of Senior Master Whitaker’s judgment in Goodale v Ministry of Justice is important for reasons beyond the fact that the parties used the ESI Questionnaire which is annexed to the proposed e-Disclosure Practice Direction and which is also annexed to the judgment. The judgment includes a careful recital of the problems raised by electronic documents and of the rules which already cover them, as well as a copybook example of the analysis which a judge ought to make once it is clear that electronic documents exist and should be disclosed.

Senior Master Whitaker is, of course, the chairman (and I am a member) of the working party which drafted both the Practice Direction and the Questionnaire. You will probably be aware by now that the Civil Procedure Rule Committee recently decided that the appropriate course was to kick the PD into the long grass of a sub-committee. The Goodale judgment shows how much can be done by active management from a judge who is willing to roll his sleeves up. Read the rest of this entry »

E-Discovery costs-shifting in US litigation

March 3, 2010

I referred in a recent post to an article I had read which concerned the shifting of US e-Discovery costs from one party to another, that is, the situation where costs incurred by one side are taxed and payable by the other.

I was puzzled, because I was not aware that this was common in US courts, where they refer to costs recovery between parties as “the English rule”. If one has questions about such things, the man to ask is Craig Ball and, although I did not ask him, it turns out that he has written recently on this subject anyway. Read the rest of this entry »

E-Discovery and Judicial Involvement in Australia

March 1, 2010

Project Counsel is the sister site to The Posse List, both run by the ubiquitous Gregory Bufithis. Project Counsel’s web site carried an article on 25th February with the title In Australia, e-Discovery and enhanced judicial involvement come of age . That is a high ratio of interesting key words to me, with “Australia”, “e-Discovery” and “enhanced judicial involvement” all being hot topics.

The article summarises a look taken by Australian law firm McCulloch Robertson at the development of active court involvement in the management of cases generally and electronic discovery in particular. It includes many elements in common with those which we either have or are promoting in England & Wales following the Jackson Report on Litigation Costs. The general aim is the reduction of the cost of litigation and minimising unnecessary delays. It is some consolation to me, following the recent side-lining of our draft e-Disclosure Practice Direction and ESI Questionnaire, that the introduction of the equivalent in the Federal Court of Australia (originally Practice Note 17, now CM 6) was as long drawn-out and painful a process as we are finding it here. Australia got there in the end, a little over a year ago. Our draft Practice Direction took account of the arguments and difficulties experienced in Australia amongst other places.

Doubtless we will get there in the end, and catch up with not just Australia but Singapore and Canada, both of which introduced also new e-Discovery rules in 2009. We used to lead the world in such things, but that was true also of cricket and economic prosperity. Read the rest of this entry »

You cannot really complain at a full InBox and lots of tweets

February 26, 2010

A day in London leaves me with a pile of e-mails and a heap of tweets – all signs of a lively market, and to be welcomed despite the time it will take to catch up. Add a crusading podcast, a decent lunch, and an interesting meeting and it all adds up to a useful day. But, as an aside, why do some businesses go out of their way to alienate their customers?

I blame Twitter myself. I used to be able to go out for a day and keep up, more or less, with the e-mails as they came in, so that I had only to file them on getting home. These days, that stream is supplemented by a near-constant flow of tweets, a high proportion of which carry links to interesting articles. Again, I can usually keep up with that flow as it comes by. The problem today was that my three meetings had gaps between them only just long enough to walk from one to the other. An alarmingly high number of urban road accidents are apparently caused by people dealing with their e-mails and tweets whilst walking and, interesting and important as it all was, I was not prepared to be run over in the cause. The journey home from London to Oxford appeared to take about five minutes, so I presumably slept through it and was very lucky not to end up in Hereford.

The result, now I am home – on my left a screen full of interesting tweets; on my right an Inbox full of e-mails. I am not complaining, you understand; there are plenty of businesses at the moment which warrant no tweet-flow and generate no e-mail traffic. Besides, today’s stream has included, in no particular order, the following: positive reactions to suggestions which I have floated about e-Disclosure road-shows; progress on a proposed supplement in The Times on legal efficiency; a message with “massive congratulations on the ease and value” of my blog; a link to a white paper which looked familiar before I realised that I co-wrote it with 7Safe; interest in sponsoring the Project from a big player in search; a further step forward on the Women in eDiscovery initiative which we are running; a product release by one of my sponsors; an article from Australia headed “e-Discovery and Enhanced Judicial Involvement Come of Age” which is extremely timely; a US article which uses a post of mine as the starting point for reflections on EU privacy; and some re-tweets of an article I published before I set off this morning. That is a lot to follow up, but it is all good stuff. It will have to wait until tomorrow. Read the rest of this entry »

Moving forward on all fronts

February 25, 2010

I am off today to record a podcast for CPDCast about the e-Disclosure components of Lord Justice Jackson’s report. You may recall that I was booked to do this on the day before the Civil Procedure Rule Committee met to discuss our draft Practice Direction and ESI Questionnaire for the third time. I had got as far as sitting in front of the microphone and completing the sound-check when some intuition made me abandon the whole thing. By tomorrow, I said, we will probably know that the practice direction has been accepted by the Rule Committee, and it seems daft to make a recording which will be out of date tomorrow.

Well, as we now know, the Rule Committee felt unable to pass the draft on which we had worked for 18 months and of which Lord Justice Jackson had said

In my view, the substance of this practice direction is excellent and it makes appropriate provision for e-disclosure. On the assumption that this practice direction will be approved in substantially its present form by the Rule Committee, I do not make any recommendation for procedural reform in relation to e-disclosure. Read the rest of this entry »

No need to wait for the eDisclosure Practice Direction and Questionnaire – just get on with it

February 23, 2010

The decision (or, rather, the non-decision) of the Civil Procedure Rule Committee to send the e-Disclosure Practice Direction and EDisclosure Questionnaire off into the sidings of a sub-committee has been the equivalent of coming up behind a funeral cortège whilst driving to catch a train. You have to show respect, of course, but you can feel time and money dripping away as you clench the steering-wheel in frustration.

The delay will not stem the creation of electronic documents nor moderate the need of lawyers to manage those documents for litigation. The purpose of the Practice Direction and Questionnaire is to streamline that effort and that expenditure so that the time and money are spent on things which matter. The worst fear is that the Questionnaire will end up in some appendix as a ‘Guide to Best Practice’ or something equally wet. If the obligations to discuss sources of data have sat unused in the Practice Direction to Part 31 CPR for over five years, it seems unlikely that the addition of a best practice guide will do much to remind lawyers and judges of their obligations, still less actually help with the process, which is what the combination of the draft documents intends. Read the rest of this entry »

Jackson untroubled by delay to e-Disclosure Practice Direction

February 23, 2010

I do not generally deal in instant news in these pages – considered reflection is more my style and, besides, there is normally a queue of things to write about.

At the top of that queue at the moment is a draft article which picks up on things other people have written about the delay to the introduction of the proposed E-Disclosure Practice Direction and Questionnaire. One of those articles is by Professor Dominic Regan, but that can make way for a brief report which he sent me overnight. It reads as follows:

I attended the Civil Justice Section of Law Society dinner last night. Two nuggets emerged:

1. Sir Rupert Jackson announced the formation of a Judges Council of four members including him and Kay LJ which will meet on 4 March to oversee and push change from the top.

2. Sir Rupert took five questions. One was mine. How did he feel about the Rule Committee not passing the e-Discovery material? He said that the will of the committee had to be respected. He was not to impose his will. He gave the clear impression he was not troubled; it will happen.

Sir Rupert is a courteous and patient man and he faces bigger battles than this one. Whether one respects the will of the Rule Committee, as he does, or merely accepts it, as I do, as the equivalent of a traffic jam or train delay, the important thing is to get there in the end. I started working on this in 1993, so I guess I can wait a little longer.


There is more to FTI Technology than Attenex and Ringtail

February 20, 2010

My self-imposed job description involves flitting between all the players in the electronic disclosure / electronic discovery world, picking up information and ideas from one place and dropping them in another. I talk to judges, lawyers and technology suppliers, read a lot of web-based information and exchange e-mails and tweets with people from every corner of the e-Discovery world – “world” in both the figurative and literal senses. I am interested in the court rules, the practice and the technology and in how they relate to each other.

I keep secrets where I have them – from working with lawyers on behalf of their clients or when I am told of pending technology or marketing initiatives, to say nothing of the gossip which flies around – but, on the whole, my role is to talk and write about what I hear or read. The only filter apart from confidentiality is whether I am interested and think that others will also be interested.

This is a privileged position – I have lots of privileges, but the ability to pick off only the things which interest me outranks the rest. It allows me, magpie-like, to pick out the bright and shiny things and leave the rest on one side.

AttenexOne of the bright and shiny things in the litigation software market is Attenex, whose visual analytics caught my eye some time ago for precisely the reason why they attract lawyers – they make it possible to grasp the overview and to drill down to the detail in a way which is simultaneously efficient and intuitive. Attenex is now owned by FTI Technology, as is the equally iconic Ringtail Legal.Ringtail FTI has now had time to bed these products down into their overall (and very broad) software and services offering and I thought I ought to go and see where they have got to and how the pieces fit together in the process. Craig Earnshaw, managing director of FTI technology in London, invited me in for an afternoon recently to bring me up to date. Read the rest of this entry »

Dominic Regan on the Jackson Report: the word of the moment is momentum

February 18, 2010

There is a great deal of interest being shown in electronic disclosure amongst UK lawyers at the moment. Some of the activity is reported in my post Containing the interest in the eDisclosure Practice Direction and ESI Questionnaire. That ended with the disappointing (see what moderate words I can use if I take a deep breath first and try) news that the Civil Procedure Rule Committee felt it necessary to refer some aspect of the draft Practice Direction and ESI Questionnaire to a sub-committee. We (that is, Master Whitaker’s Working Group who drafted these documents) have been assured that the substance of both documents will remain in the form endorsed by Lord Justice Jackson in his Final Report [Para 2.5 on page 366].

It seems to me that the move towards proper management of electronic disclosure is now inevitable, sub-committee or no sub-committee. I am fielding requests to go and talk to law firms. Page views on my blog, which averaged around 5,000 in the closing months of 2009 were at 7,000 in January and are heading for the same number in February. If the trigger is Jackson, the parts of which lie in our own hands are the education message and the backing for the Questionnaire which, remember, does not merely make you identify your own sources, but gives you an early look at those of your opponents. Clients like early looks at the scope of the task ahead. Read the rest of this entry »

Defensible document review – Epiq Systems panel at LegalTech

February 18, 2010

As is increasingly the case, The Posse List is getting out its reports of events and developments so quickly and comprehensively that it is folly on my part to cover them as well. This suits me well, since I am far from short of topics of my own, and I can extend my range by drawing your attention to Posse List reports. This is particularly helpful where I was not present, as was the case at the opening panel organised by Epiq Systems on Day 2 of LegalTech 2010. I was in fact outside, doing the final preparations for the second panel, which I was moderating, and about which I will write separately.

The subject of the first panel, and the heading to The Posse List’s article, was Defensible document review. Epiq is primarily thought of as a software company because of the respected and widely-used review application DocuMatrix. In the US particularly, however, they are known also for a document review service. The panel was led by Laura Kibbe and the panelists included our own Vince Neicho, who knows a thing or two about document review from his position as Litigation Support Specialist at Allen & Overy, and David Kessler , a partner at Drinker Biddle. David proved a lively panelist on my panel as well. Read the rest of this entry »


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