IQPC Exchange in Munich: Information Retention and eDiscovery in Europe

The civil law jurisdictions of mainland Europe have no discovery tradition as it is understood in common law countries like the US and UK. The IQPC Information Retention and eDiscovery Exchange in Munich was an opportunity for corporate counsel to find out what matters, why it matters and what to do about it, as well as to meet service providers who can help them. The “adequate procedures” defence given by the UK Bribery Act sets a target which acts as a spur to the initiation of pre-emptive measures regarding information management.

Any discussion about electronic discovery in common law jurisdictions comes freighted with history, not all of it helpful. Common law discovery rules require the exchange of documentary evidence between parties to litigation. Our definitions vary, and our rules, case law and practice can produce different results; there may be more (the US) or less (the UK) skirmishing in advance as to the proper scope of discovery, and different jurisdictions have different ways of measuring compliance and of punishing defaults. The end result, however, is that a lot of documents are handed over. I may have strong views on how we should go about this and about how we can reduce the volumes in play without any risk to justice, but I will fight to defend the principles of common law discovery.

Civil jurisdictions, such as those in Europe, have none of this. I simplify for the sake of brevity, but the general approach in these jurisdictions is that the court decides what documents it needs to reach a conclusion. Those who seek other documents must specify them with a degree of particularity which effectively requires that they can say exactly what they are looking for.

The privacy and data protection laws which limit what you may hand over are less onerous when viewed in the context of this civil framework, for the fairly obvious reason that the discoverable volumes are smaller. It becomes easier to understand the EU Commission’s attitude to the impact of privacy restrictions once you appreciate how little is exchanged. This is the world for which the data protection and privacy laws were invented – Europe not only has incentives for minimising document exchange derived from its political history, but has no tradition anyway of handing over documents in civil proceedings.

US lawyers tend to see an obstructive Europe standing in the way of legitimate demands for information. It looks rather different from the perspective of a French or German company which, with no discovery tradition, finds itself under siege. Its links with US companies, whether as a parent, a subsidiary, sister company, or as just as a business or trading partner, bring demands for US-style discovery which appears to recognise no jurisdictional limits. A range of US authorities claim both regulatory and criminal rights over their documents. The EU has its own regulatory authorities and an unquenchable zeal for interference. There is proactive assertion of the rights of the individual against the state and against corporations. On top of all these external pressures comes the recognition that we cannot just go on collecting information at the rate at which we can now create it – a business incentive added to the external factors.

All this gives a different flavour to e-discovery conferences in mainland Europe, even where the organiser (in this case IQPC) has a well-established London conference with almost the same title, and where many of the speakers are the same as those I meet everywhere else. The Munich event was, in IQPC parlance, an “Exchange” rather than a “Summit”, which means that the corporate counsel (who are the main audience) have pre-arranged meetings with suppliers whose offerings have been pre-matched to their expressed needs. The impression I got from speaking to both providers and delegates was that there was a high compatibility rate. The Exchange format also provides conventional speaker and panel sessions plus the opportunity to mingle and talk in the gaps and over meals. If my primary reason for going to these events is to speak at them, I am equally interested in meeting informally with delegates and suppliers, with as much emphasis on listening as talking.

Recommind Webinar 16 June – Earles v Barclays Bank

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.

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Women in eDiscovery at IQPC on 18 May

It is not too late to sign up for the women in e-Discovery session at IQPC’s Information Retention and e-Disclosure Summit on Wednesday 18 May. The conference itself runs from Monday 17 May and the Women in eDiscovery session takes place after lunch on the last day.

The session, which is open only to Women in eDiscovery members and is free of charge, will include talks by English and US judges as well as by solution providers. If you are not a member of Women in eDiscovery, it is not too late to join. Contact Laura Kelly.

It is not too late either to attend the whole conference which, as you can see from the programme, has comprehensive coverage of information management (that is, broadly, the things which clients ought to be doing in anticipation of litigation, regulatory investigations or internal enquiries) and electronic disclosure. My article on the Al-Sweady case gives links to a number of other cases which, taken together, make it clear that no one who purports to give advice on litigation can sensibly remain ignorant both of the obligations as they stand and of  pending developments, including the ESI Questionnaire.

Recommind research shows UK companies not ready for e-Disclosure

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.

Welcome to Recommind as a sponsor of the e-Disclosure Information Project

It is very good to be able to extend a warm welcome to Recommind as a new sponsor of the e-Disclosure Information Project. As the focus for e-Discovery / e-Disclosure turns increasingly on to the way companies collect and manage data on their own systems, the addition of a provider who embraces enterprise search, e-mail management, records management e-Discovery and compliance is both appropriate and timely.

Recommind’s roots are in enterprise search. MindServer Search brings user-based relevancy tuning, that is, result sets which are boosted by input from the individual profile of the user. It also allows federated search, the ability to search across internal and external data sources with a single query. The result of indexing information from document management systems, intranets, contact management databases and websites are “concept models” which rank search results by relevance.

Letter in the Times about destruction of ESI

Amongst my predictions for 2010, published on the website of the Society for Computers & Law on 21 December, was this one:

Another side-effect of the Earles judgment will be a debate as to what the law of preservation and spoliation actually is in England and Wales. The focus will be on deciding at what point a party might reasonably have anticipated litigation.

This prediction has started to come good before the year is out, with the publication in today’s Times of a letter headed Data Destruction from Peter Hibbert, Associate Professor at the College of Law in Birmingham. He refers back to Grania Langdon-Down’s article of 17 December E-disclosure: how good is your filing system? which I wrote about on the same day.

Gartner points to non-US E-Discovery market growth

Gartner predicts an eDiscovery software market worth $1.2 billion in 2010. More than 10% of that will be outside the US. Software suppliers may be ready to run with this, but where are the skilled people?

Gartner’s report of 16 December E-Discovery Software Marketplace is Set to Continue High-Growth Pace has inevitably interested the Twitterati today. Picture Shackleton glimpsing the South Georgia whaling station after his epic journey from Elephant Island; imagine a French Legionnaire seeing an oasis, a besieged wagon train catching the sound of the 7th Cavalry bugle or the defenders of Lucknow hearing Campbell’s relief column battling to lift the siege (I could go on for pages like this, but you get the picture – the end appears to be in sight).

Gartner foresees that worldwide eDiscovery software revenues will reach $1.2 billion in 2010, an increase of 23% over 2009. They point to “unplanned events” such as “litigation regarding bribery and corruption, foreign corrupt practices, securities and financial fraud, government contracting abuses, and healthcare fraud” as the main drivers for the growth which will, they say, bring market and technology consolidation, expansion of product and services portfolios and new customer bases. I have not read the report itself, but one can probably take it for granted that these conclusions are underpinned by Gartner’s usual research and analysis.

New website for Local Government Lawyers brings commercial awareness to public sector litigation

A new website for local government lawyers has appeared. Given the very wide range of legal issues which affect local authorities, it is perhaps surprising that we have not seen one before. Local authority insulation from the real world will not help them in the civil courts.

I came across the site Local Government Lawyer because it republished an article of mine about Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) with the title The cost of non-compliance. Everything said in that judgment about large organisations, such as the defendant bank in that case, applies equally to litigation brought by or against local authorities – they deal with many people, have a host of statutory powers and duties which generate a lot of documents, and a large internal client base which differs from a bank’s only in that the background and experience of the people involved insulates them from the rigours of the commercial world.

KPMG survey: Is the legal department ready?

Read KPMG’s new survey on corporate readiness for litigation and then read the judgment in Earles v Barclays Bank. You may spot a connection.

KPMG have published the results of the survey which Alex Dunstan-Lee previewed for us at IQPC’s Brussels conference in October.  One of my reports of that event summarised what Alex said. Another of my articles ended thus:

Perhaps the biggest paradox, however, lies in the disparity between the number of people who accept that information management is important and the number who are actually doing anything about it. Coming to a conference like this would be a good start.

That is more or less the theme of KPMG’s report. It is called Is the legal department ready? Managing electronic data for litigation and regulatory readiness.

Welcome to Stratify as new Project sponsor

I am very pleased to welcome electronic discovery software company Stratify as a sponsor of the e-Disclosure Information Project. Their addition to the list of sponsors coincides with the opening of their London office and data centre, as well as Stephen Whetstone’s welcome appearance as a panellist at the Thomson Reuters conference last week.

Stratify is a subsidiary of Iron Mountain, Inc., the information protection and storage services giant. Iron Mountain has long-standing facilities and clients in the UK and EU (see the Iron Mountain UK site) as well as elsewhere in the world. There is no technical reason why the data must be close at hand, but EU clients want not only to have personal contact with their discovery suppliers but must be able to house their data within the EU for data protection and privacy reasons. Iron Mountain’s storage and data security infrastructure and experience will be comforting factors. The Iron Mountain press release sets out the business proposition for potential clients.

The Continuing Challenges of Preservation, Collection and Exchange

The first session at the Thomson Reuters e-Disclosure Conference in London last week was called The Continuing Challenges of Preservation, Collection and Exchange. George Socha’s panel included a solicitor, a software provider and a judge – Matthew Davis of Lovells, Stephen Whetstone of Stratify and HHJ Simon Brown QC.

Judge Brown said that the court is interested in the material, and only the material, needed for a decision. The point at issue in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009), on which he recently gave judgment, was not a difficult one. The judge is the end user of the disclosure process and needs contemporaneous documents. He had been given many documents which were not relevant to the issues which he had to decide, but not the ones which actually mattered. Witness statements drawn up by lawyers are often not worth the paper they are written on relative to the contemporaneous documents, in this case the records of telephone conversations.

Where does a wise man hide a leaf?

What connects Father Brown’s deduction that a trusted old soldier had been a villain with Autonomy’s tracing of Jérôme Kerviel’s activities at Société Générale? Both stories involved not just hiding leaves in forests but making a forest in which to hide the leaves. Companies need to get a grip on their data.

The Times has been running a rather good series of supplements on matters relevant to business. Last week’s was on Corporate Fraud, and I and other e-Disclosure commentators were interviewed for an article called Finding a hidden leaf in a forest (page 5) .

The heading is a misquotation. What I actually said in my interview was “Where does a wise man hide a leaf?”. This expression was used by Lord Justice Jacob in Nichia v Argos in his discussion about mass disclosure as opposed to the consideration of documents “with some care to decide whether they should be disclosed”. His paragraph 47 says this:

“…it is the downstream costs caused by the disclosure which so often are so substantial and so pointless. It can even be said, in cases of massive disclosure, that there is a real risk that the really important documents will get overlooked. Where does a wise man hide a leaf?”

Earles v Barclays Bank reported in the Times

Earles v Barclays Bank was reported in The Times today with the heading Disclosing electronic data.

I have already written about this (see Costs penalty for non-compliance with e-disclosure obligations). It is significant at several levels: unlike Digicel it is a fairly ordinary case; it is firmly grounded in authorities about evidence and not merely about disclosure or electronic disclosure; it covers the use of disproportionately expensive lawyers as well as procedural defects; perhaps most importantly, it is a case where documentary evidence would have proved immediately what it took much oral evidence to show, possibly allowing the case to be dealt with on a summary basis. The disclosure defects did actually cost time,  money and court time.

Clearing the decks before going to Brussels

I do not pretend that this job is hard work in the way that trying to reach a sales target or managing a large project is hard work. It is far too enjoyable for that. It would, however, be good if all these interesting things could be spread out more evenly across the year.

Did I really agree to deliver 10,000 words for a book chapter on digital evidence by 1 October? Did that have to coincide with finishing off two white papers? Why do all the conferences end up bunched together (three conferences in three continents in three weeks starting this week in Brussels)? Are the Twitter eDiscovery lists always so full of interesting stories to follow up, or have I joined in at a particularly interesting point?  I could write ten stories a day entirely from the leads on there alone – but for the book, white papers and the conferences, that is.

Judge Facciola on US and UK judicial discovery education

US Magistrate Judge John Facciola has recorded a podcast interview with Sarah Haynes of IQPC. This follows a very successful judicial panel which Guidance Software organised at IQPC’s e-disclosure conference in London in May (see The discovery of disclosure commonality with a trans-Atlantic judicial panel)

The interview can be found here. You have to register to access it, but it repays that small effort.

Judge Facciola said that US judges now manage cases from their inception, including participation in the discovery process. Magistrate Judges, whose role includes trying to settle cases, are applying the same approach to the discovery disputes – trying to settle them. You cannot, he said, just sit there and wait for something to happen, but must be very proactive in dealing with matters in an anticipatory way. Judges cannot exempt themselves from the duty of competence which they expect from the lawyers, and the Federal Judicial Centre is holding two day conferences with a particular focus on discovery.

Recommind recommends recognising risks of e-disclosure unreadiness

I do not take a great deal of notice of press releases. If they are interesting, everyone else will gamely recycle their contents, and who wants to be like everyone else? If they are not…. you don’t need me to finish the sentence. And when I say “recycle their contents”, I mean just that – a quick copy and paste and they are done – instant journalism. It has its place but it is not what I like to do.

I do, however, like to be sent PRs, so that I can decide if they are worth the trouble of translating from their native Marketing Crap into English. All those tri-partite, polysyllabic, hyperbolic exaggerations (like that one) which someone has laboured over so assiduously have to be stripped out to try and divine what actually matters (try it: look at most PRs in this business and you will find that every verb has three long adverbs and every noun has three adjectives  – “rapidly, accurately and defensibly” or  “innovative, cost-effective and user-friendly”; once or twice is fine, but by the time you get to the end of a piece in which every word has multiple qualifiers you are gasping for breath).

The FSA swoops on the unprepared

The American Museum of Natural History in New York contains many tableaux – scenes of animals and man in various stages of early development. My son and I spent an afternoon in there when LegalTech had ended and I found that I recognised many familar types from the litigation world amongst the figures, most obviously (too obviously perhaps) the dinosaurs of whom I wrote in LegalTech lessons from extinct species.

I have now been through the photographs which I took with half an eye on their value as illustrations to this commentary. You may expect to see pictures of walruses and buffalo who look like judges,  primitive men for whom technology meant flints and whose idea of co-operation involved spears and clubs (you know who I mean,  all you who use discovery / disclosure as a bludgeon) and, of course, dinosaurs.

Guidance Software Q4 results – a guide to the wider market?

Guidance Software, Inc., which is amongst the sponsors of the e-Disclosure Information Project, has posted Q4 2008 results which are its best quarter’s results in its history, with revenue of $25.2 million. CEO Victor Limongelli was on bullish form in an analysts’ discussion, whilst retaining a sense of caution wholly appropriate to the uncertainty of the times.

Guidance’s results may be a straw in the wind, an indicator of the way things are going. I say that because its market is up at the front of the process which ends in a discovery exercise, a regulatory inquiry or an internal investigation. If you are in mid-case, then you need a review application. If you are starting down that trail, you are collecting data, probably with Guidance’s forensic tools. If you are a large company which thinks you are going to face a need for collections in the near future, then you are buying Guidance’s EnCase eDiscovery or something else whose purpose is anticipatory rather than merely reactive. The report to which I point you above sets out the numbers of Q4 sales relative to previous periods, as well as the interesting statistic that Guidance taught 25% more students how to use its products in 2008 than in 2007.

Autonomy panel at LegalTech points to proactive clients – and lawyers

Panel sessions at LegalTech and other conferences combine the best of all worlds so far as I am concerned. The burden is distributed – the moderator has to have a plan and the ability to herd the speakers through it, and those on the panel have to have an agreement as to who is going to cover what, but you don’t have to prepare slides a month in advance nor stand alone under the spotlight hoping that the words sound as good live as they did four weeks ago in the seclusion of your office.

There is enough structure but also room for spontaneity as the discussion takes turns which were not on the formal agenda and, as long as the moderator is good enough to haul you back to the advertised programme, they can be fun to do – assuming, of course, that your fellow-panellists  have something useful to say.

There was no problem on that score with the two panels which I did for Autonomy at LegalTech in New York earlier this month. The programme was the same for both of them. Carter Hopkins, in-house counsel at McAfee, and I were on both of them, but the third player in one was Florinda Baldridge, Global head of Litigation Support at Fulbright & Jaworski and at the other was Laurie Weiss, co-head of Fulbright’s E-Discovery and Information Management Practice Group. Deborah Baron, VP Legal & Compliance at Autonomy, Inc. was the able moderator.

Legal Inc panel at LegalTech lives up to its billing

Litigation support providers from the relatively small UK market  made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.

The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.

The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire  and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.

Lisa Burton of Legal Inc introduces the Panel

Peter Cladouhos, Sanjay Bhandari, Matt Davis, Andrew Haslam, Charles Christian

E-Disclosure Taster Menu in Bristol

I went down to Bristol last week with a group of electronic disclosure suppliers at the invitation of the Western Chancery & Commercial Bar Association. The aim, as in Birmingham last year, was not just to talk about electronic disclosure, but to illustrate it by showing and describing a range of applications and services

Bristol used to be Britain’s second city. In the 18th Century it grew prosperous on the triangular trade which took cloth and iron goods to Africa, slaves to America and tobacco, and sugar and rum back to Bristol. In 1841 the Great Western Railway connected it to London and, in an early example of joined-up commerce, you could travel on GWR trains and GWR ships from London to New York. Its relative prosperity declined as other places boomed and as different industries – ship-building, tobacco, cotton – had their heyday and fell away. There is more industry in the region than one sees from the M4 – I flew over the Severn Estuary on my way in from New York at dawn a couple of weeks ago and noted the miles of industrial zones from Avonmouth Docks down towards Bristol.

All that industry, together with property-related work from the West – Bristol is the first place of any size as you come up from Cornwall or out of Wales – has supported the growth of a strong legal and professional services business. Every other legal magazine in the late 1980s seemed to profile Bristol. Its population of around 400,000 makes it now Britain’s tenth city preceded by London, Birmingham, Leeds, Glasgow, Sheffield, Bradford, Liverpool, Edinburgh and Manchester. It can take as little as 90 minutes to get to London by train.  There are some large barristers’ chambers in Bristol and one does not get the impression that work is in short supply. Bristol is one of ten cities in Britain with a Mercantile Court, that is, a court with a specialist commercial list and judge or judges ticketed to hear mercantile cases.

All very interesting you may say, but this site is meant to be an information resource on electronic disclosure, not a local history, travel guide or Chamber of Commerce directory. Indeed, but disclosure comes with litigation; litigation follows industry and business; and the ability to win commercial litigation work from any region depends on the quality of local law firms and chambers, and on their ability to stop the work from heading to London. It ought to be possible, in fact, for the combination of legal skills, good transport links and an efficient Mercantile Court not just to stem the flow to London but to reverse it. The sixty or so barristers and solicitors who turned out to listen to us presumably want to draw work into their region.

Kazeon to host judicial e-discovery webinar

I have yet to write up the tremendous speech made by US Magistrate Judge John Facciola at LegalTech in New York last week. My excuse, if such be needed, is that it contained so much of importance to anyone practising in any common law civil jurisdiction that it will take some time to capture what he said. For some unaccountable reason, the organisers failed to record it, making it the more important to write it up.

The influence of a judicial perspective on any aspect of case management is not to be under-rated, and this applies more to electronic discovery than to anything else. One of the issues we have in the UK, for example, is one of consistency of outcome – parties do not know what to expect from the judge and so cannot negotiate about the scope of disclosure within a known framework.

US judges are more willing to discuss publicly what they expect from parties, probabaly because they are taught about it and have more exposure to it than UK judges. Kazeon, who provide software and services for corporations, legal services providers and law firms to search for, retrieve and analyse data, has a webinar coming up at which the speakers include two judges.

Hanzo Archives show web archiving at LegalTech

So, you have got your mind round this “move to the left” bit they were all talking about at LegalTech and you are clear about the importance of information management, the first stage of the EDRM diagram as a start-point (the obvious start-point if you think about it) for the collection of documents and data for litigation or for facing a regulatory investigation.

You have your custodians sorted, know how you will manage your Microsoft Office documents, may even have got your mind round the HR and accounting databases. Sorted then, ready for anything, bring it on.

The chances are that you have missed one big thing – the corporate web site and intranet. Unlike, say, individual Word files, each part of a web site depends on others. Unlike your HR or accounting database it probably lacks the tools to check its own integrity, which may depend on elements beyond your control. It probably changed frequently, with no thought as to preservation of the replaced pages, still less the ever-changing content of any database which was the source of the components of the pages. Yet your web site was customer-facing, possibly included pricing or terms of contract, and could be vital evidence in any dispute or investigation. If you think that just copying it all onto a backup tape from time to time is the answer, have a go at restoring your last backup – if, indeed you ever made one.

That is the selling message of Hanzo Archives, whose Mark Middleton came to see me in Oxford a little while back after attending a conference at which I was speaking. I came across him again at LegalTech in NewYork last week, apparently happy that he had attracted attention even in the gloomy corner of the Hilton’s third floor which had been allocated to Hanzo Archives. His observations on what he learned from the booth’s visitors are on Hanzo Archives’ blog.

It is always good to see a British company carrying initiatives to the US, as well as to mainland Europe. It will be interesting to find out how much of the LegalTech interest converts into something more.

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LegalTech lessons for lawyers from extinct species

Only one practising UK commercial lawyer came to LegalTech in New York. Recession hit the litigation support industry before our eyes. One of the recurring themes there was that the clients are taking discovery in house.  Down the road we saw some other extinct species

As if LegalTech itself were not enough, Sunday, my first full day back from New York, lasted for 24 hours, thanks to disrupted sleep patterns, a full InBox and a five hour meeting discussing potential discovery developments in Australia and AsiaPac.

You know better by now, I think, than to expect a dutiful account of LegalTech. You get from me little in the way of faithful reports of worthy sessions, no deep market analysis, no breathless interviews with industry leaders. Others, I know, sit on the special pews reserved for bloggers and have their reports filed before the speaker has made it to the bar. I got to few sessions, although I did turn up, I think, to all those I was booked to speak at. There is no shortage of industry leaders to talk to – you bump into CEOs in corridors or go up to their eyries above cloud level at the Warwick Hotel – but journalistic scoops are not really my style and I am content to wait for the press releases. I am into broader sweeps than the last big sale or the next major release.

Welcome to Equivio as new Project sponsor

I am delighted to welcome Equivio as a new sponsor of the e-Disclosure Information Project. As I wrote in November (see New integration and new web site for Equivio) I met CEO Amir Milo at the Masters Conference in Washington. Equivio’s name was already a familiar one, but that meeting and a subsequent read-through of Equivio’s web site emphasised why Equivio is subliminally omnipresent in the data management world.

If, as I do, you spend your time explaining to lawyers, judges and corporates why technology must be used to reduce vast volumes of data and documents to manageable proportions, you learn three basic propositions – rely on illuminating snapshots not lengthy explanations, focus on the things which equate directly to the user’s own functions, and emphasise the benefits of using technology and not just the risks of not doing so. Equivio’s web site does just that, crisply and clearly.

What exactly is it that you do?

A career devoted to court rules and electronic documents is not an instant turn-on for dinner party conversation. The subjects are, however, important ones for businesses beyond those which actually work in litigation, and the rate of change is increasing

What exactly is it that you do? Like all of us, I get asked this question from time to time by people who are outside the world of law and technology. It is much easier for those of you who read this. If, whatever your gender, you say you are a litigation solicitor, then doubtless people gaze on you with that same awestruck admiration which was formerly reserved for chaps on leave from the trenches. If you are a supplier and say that you work at the cutting edge of information technology then you are up there with rocket scientists – they do not understand, but they know it matters. Barristers are assumed to have mighty brains and Ciceronian eloquence. If you are a judge, then you are met with equal deference whether you are a part-time Deputy Recorder or sit in the Court of Appeal.

When they ask me, my answer usually elicits a perfectly understandable look of blank incomprehension. “I speak and write about the disclosure of electronic documents for litigation” I say. “Will you excuse me?” they reply. “I’ve got to go and see a man about a dog” or some such transparent excuse to get away.

Autonomy Early Case Assessment at the Ritz

Most of my speaking engagements are of the nuts-and-bolts, cradle-to-grave variety where I speak for a couple of hours about the issues raised by electronic documents and about how proper use of the Civil Procedure Rules, coupled with an understanding of the available technology solutions, should give parties and the courts the means to arrive at answers which are proportionate to the case.

People can read the rules for themselves once pointed in the right direction. The technology, and the problems which it addresses, need a more visual approach, and I am increasingly getting the opportunity to use snippets of visual displays from specific products to illustrate generic points. The aim is not to try and display the whole range of solutions from the left hand side of the EDRM diagram to the right, but to use a picture to say a thousand words about a sub-set of it, to shine a torch into a previously dark corner in the hope that it illuminates the wider picture.

As a change from these points of detail, I am sometimes asked to speak about the broader context, to give a kind of “state of the nation” talk which pulls together some of the threads. One such opportunity arose last week when Autonomy invited me to be the guest speaker at a lunch at the Ritz.

Companies in dark over litigation costs

Companies in dark over litigation costs is the title of an article on the Financial Times web site today (login required). It tells of an Ipsos Mori survey commissioned by Addleshaw Goddard.

The survey’s subject-matter was more specific than the title implies. The state of unawareness refers not to the costs themselves but to the litigation funding tools available to help, such as after the event insurance.

76% identified costs as their top concern (what bothered the rest, one wonders?) but only 10% seemed to know about the possibility of third party funding and only 2% had actually used it.

Birmingham Law Society e-disclosure seminar

A collections expert, a data archive specialist, a commercial barrister and a judge took a Birmingham audience – the second audience there in three weeks – through the stages of data handling, from organising it on the clients’ server, through its collection, and on to its use in court. I was the warm-up act

Freshly returned (well, reasonably fresh, anyway) from electronic discovery conferences in Australia and the US, I was back in Birmingham on 23 October for an e-disclosure seminar organised by Birmingham Law Society. One of the speakers in Sydney, Geoffrey Lambert of KordaMentha, had referred in his session to the “Birmingham initiative” which suggests that we are making some impression. This was the second well-attended seminar in the city in three weeks, following the one at St Philips Chambers at the beginning of October.

Catching up with CaseLogistix

Products and suppliers have taken a back seat in this blog whilst wider issues and travelling have taken most of my time. Anacomp’s CaseLogistix has been busy, with a new paper on the discovery of audio files. It has a new blog as well

The e-Disclosure Information Project began with a narrow focus both as to subject-matter and as to geography – a handful of UK Civil Procedure Rules and their application in courts in Birmingham and London. It quickly became clear that lack of information about the problems raised by electronic documents, and the solutions available to solve them, was as big a problem as the rules and procedure, which led me to a mission to draw attention to them. That quickly acquired an international dimension, because both problems and solutions are the same everywhere and it made sense to tap into the thinking in other jurisdictions. More recently, recession has brought a darker – and more urgent – tone to what I write and talk about. Within the last few days, we have had the first reported case on the management of electronic disclosure and the announcement of a government-inspired (but judge-led) inquiry into the costs of litigation with its parallel implications for both access to justice and hard economics.

Getting disclosure information out of SharePoint

I was interviewed last week by one of the big computer magazines about the ever more ubiquitous Sharepoint – Microsoft Office SharePoint Server (MOSS) to give it its full name. The context, unsurprisingly given my own area of practice, was the implications for SharePoint users of the need to produce documents and data from SharePoint to meet the demands of litigation or of regulators.

It is some time since I used SharePoint. My experience, however, is enough to tell me that it is superb at ingesting and distributing information, and substantially less so for finding it and getting it out again.

I do not mean, of course that you cannot find material in SharePoint – that is very much part of its function. Its indexing and retrieval tools, however, are geared to its primary function of production, sharing and distribution of information about set topics, often across multiple servers and jurisdictions. The very ease with which data can be distributed widely militates against the strict control which is expected – or which ought to be expected – of a document retention policy and all the other ideals of information governance within organisations.

Lord Justice Jackson to head litigation costs review

The Master of the Rolls, Sir Anthony Clarke, has appointed Lord Justice Jackson to head a committee to review the costs of civil litigation.

The appointment apparently follows a meeting between Sir Anthony Clarke and Bridget Prentice, Parliamentary Under Secretary of State at the Ministry of Justice. Bridget Prentice’s specific responsibilities include access to justice (or, rather, Access to Justice, the capitals presumably denoting a Government “initiative” rather than merely a statement of the right of every citizen).

There is as yet nothing on the Ministry of Justice web site about this, but a Legal Week report says that the review will begin in January and report in December 2009. Lord Justice Jackson will be assisted by a small team of assessors drawn from the judiciary, the legal profession and, interestingly, an economist.

Speaking and listening in Australia

Sydney feels familiar from the moment you step off the plane. It is not just its culture, language and architecture which makes you feel at home – its law, its information management issues, the remedies available to judges and the suppliers are the same or similar

Several decades ago, I lived and taught in Kenya on what was then not called a “gap year”. The gap was not optional in those days for those intending to go to Oxford or Cambridge.  I had until September to occupy, and arranged to spend the interval at a remote up-country school near Nyeri.

There was a boy amongst us who could see English parallels everywhere – you would be standing on a mud road looking up a valley of tea plantations at the mist hanging over the snowy peak of Mount Kenya and he would say “Just like the Lake District”. I have half a recollection that he compared a part of Nairobi to his native Croydon. This obsession with the similarities became slightly annoying for one whose pleasure derived from the geographical and cultural differences. In fact, although Kenya had become independent only ten years previously, pretty well every outward trace of colonial rule had been extirpated. The first signs of the new colonialism of the multinational existed in the form of a new Hilton Hotel.

I thought of this as I came in to Sydney over Botany Bay, whose sewage farm, oil refinery and container terminal jarred somewhat against my mental picture of Captain Cook picking daffodils beside gleaming sands. The first sign you see, over the starboard wing before your wheels touch the ground, are the yellow arches of McDonalds. One’s expectations of finding anything very different from Oxford or Washington diminish accordingly.

Betting on certainties in the information war

The odds on gaining improved information management from the recession are better than those on offer for Peter Mandelson’s resignation before the next election. The war to tame the information needed for litigation and regulation, like other wars, will breed new tactics and technologies

My article What will recession do for civil justice?, which I published last Friday, brought together subjects as diverse as the agricultural depression of the 1870s and Peter Mandelson’s attachment to rich foreigners, in the context of leadership and the role of judges in the recovery which will come from the attrition of recession. My theme was that as lawyers and judges sort through the wreckage of the old economy, there may be an opportunity for business practices to take a leap forward. Specifically, I suggested that the time and expense of handling the litigation which has suddenly become a non-optional part of corporate strategy might prompt companies to reappraise how they manage the information whose volumes will prove the biggest single source of expense in litigation. The courts will have a hand in shaping how important that seems next time round.

Birmingham barristers see e-disclosure applications

A seminar in Birmingham allowed an audience of lawyers to see some of the applications used to handle electronic disclosure topped and tailed by some explanation of the litigation context. It was not just a trade show but a visual way to convey that the solutions are gaining on the problem

The e-Disclosure Information Project originated in Birmingham when Mark Surguy of Pinsent Masons introduced me last summer to HHJ Simon Brown QC, a designated Mercantile Judge at the Birmingham Civil Justice Centre. We brought it back there at the beginning of October when Edward Pepperall, a commercial barrister at St Philips Chambers, arranged for the Midland Chancery & Commercial Bar Association to invite us to give a reprise of a talk he had heard us give to solicitors a few months ago.

Ed Pepperall’s reasoning was that barristers are increasingly getting involved in the procedural aspects of Case Management Conferences. Birmingham may be ahead of other places because the judges there are known to practice the “active management” which the overriding objective requires and in which the parties are expected to take their part. The Commercial Court Guide, on which the Mercantile Court Guides are based, emphasises that the CMC is not just the old summons for directions. Judge Brown says of the CMC that is a “business meeting”.

If barristers are engaged at the CMC then they need to be aware – preferably well before they go in, and not just in the corridor outside – what the court will expect them to cover. Hands up all those who know about the obligation to discuss electronic sources of documents in Paragraph 2A.2 of the Practice Direction to Part 31 CPR. I thought not. What about Digicel (St Lucia) v Cable & Wireless? We did not mention that, because it had not been heard then. It has now, and we can expect many more orders requiring parties to discuss their sources and to take difficulties or disagreements to the judge.

What will recession do for civil justice?

I nearly did Gordon Brown an injustice last night. My notes for a talk to be given in Birmingham included the observation that “our weasel-worded Prime Minister has not yet found the guts to admit that we are in or heading for recession”. Fortunately, the subject came up in the pre-seminar drinks, and someone drew my attention to the fact that our weasel-worded Prime Minister had in fact summoned the courage to use the R-word the previous day.

I am a newspaper junkie, which is subtly different from being a news junkie. I do not much mind about being bang up to date with the news, but no copy of the Times leaves the house without my reading it from cover to cover – well not the sport obviously or the fashion, but most of the rest. Having been off doing my Phileas Fogg bit (I was at e-disclosure conferences in both Sydney and Washington the previous week), I have a large backlog of newspapers to read, and keeping up to date has suffered as a result.

It is rather odd, in fact, reading old papers over a week as volatile as that one, particularly as I read them in no particular order. It was not just that share prices were going up and down like an intern’s knickers. There were old stories coming round again, and I began to think that I had fallen into a newspaper time-warp. Here is the Labour party finally fulfilling its 1931 plan to nationalise the banks (good to know that Labour keeps some of its promises anyway, even if it takes a while). And there is Peter Mandelson accepting hospitality from a rich foreigner just before the foreigner gets a valuable trade concession. No connection at all, says Mandy and, of course, we have to believe him, just as we had to believe Tony Blair when he said that he knew nothing about the Bernie Ecclestone £1 million loan and its intimate connection, in terms of timeliness at least, with the relaxation of the tobacco advertising ban. Turn the page – oh, there is that story back again. It seems that when Teflon Tone said white was white on that occasion, what he meant was, um, the opposite.

Leadership in litigation

This is a report of a speech given by US Magistrate Judge John Facciola at the Masters Conference in Washington on 17 October 2008. Its theme was leadership. Whatever view UK lawyers and judges may take about US litigation discovery, this thoughtful survey has much of value for a UK audience

Judge Facciola began by holding up FDR (for you Brits, that is Franklin D Roosevelt, the architect of the New Deal in the Depression of the 1930s) as the model for leadership. He went on to give us one modern-day example of fine leadership, and several where leadership was seriously lacking.

Ernst & Young Forensic Party

If Ernst & Young Forensic Technology and Discovery Services manage their clients’ work as thoroughly as they manage their party invitations – as I am sure they do – it seems unlikely that they miss much. My Inbox is full of reminders and confirmations of the date, all apparently from department head Sanjay Bhandari – I say “apparently” because I was actually talking to him at the Legal Week Litigation Forum when the last of them arrived the day before the party, and I am damn sure he wasn’t sending e-mails as we spoke.

It is worth a trip down to More London even if you are not favoured with an invitation from Ernst & Young. It lies on the South Bank, just west of Tower Bridge. I found it when I spent a night at the Hilton Tower Bridge earlier in the year – it is even better by night than by day. The river frontage is a wide space with seats and those fountains which bubble gently out of the ground and then shoot up your trouser leg when you get too close. Apart from E&Y’s building, there is Boris’s bee-hive shaped office, Norton Rose, and a Marks & Spencer food store to serve as a backdrop, with HMS Belfast, 30 St Mary Axe (aka the Gherkin) and the Tower of London in front of you. I saw a dinner party taking place on a platform hanging from a crane, with waiters wandering nonchalantly around 60 feet up.

The view gets even better when you get up E&Y’s building, particularly at sunset, with a panorama from Westminster to the Tower. One probably should not choose a professional adviser on the strength of the view from its office, but it might be a tie-breaker when you come down to the last two choices.

Practical Guidelines for e-Disclosure Management

Litigation solicitors in private practice and in-house lawyers would have done well to be at the Ark Group conference last week. Run over two days within spitting distance of the Tower, it had the title Adopting Practical Guidelines to e-Disclosure Management for the Legal Profession. Practical it was, as well as conveniently located.

Its supplier sponsors included FoxData, Autonomy, CaseLogistix by Anacomp, Guidance Software and LexisNexis, all of whom are also sponsors of the e-Disclosure Information Project which I run. Part of the Project’s aim is to make connections between suppliers whose service or software offerings are in different parts of the wood – between them, these suppliers and their applications collect data, process it, host it for review, help with analysis and make it available for exchange with others. There is overlap and competition between them, but also a common interest in helping practitioners – and judges – understand what is available to tackle the problems of e-disclosure. Part of my role is to help the would-be buyers see both the wood and the trees.

Where were the lawyers at IQPC?

The potential audience for these musing ranges from large London firms with Terabytes of data for review down to much smaller firms with modest volumes and budgets to match. A report of a two-day, high-end conference in London will resonate more towards the higher end. Its gist, however, is that what the biggest firms and their clients are doing today, the next tier down will be expected to know about tomorrow.

Whose discovery rules would you rather break?

Damned if you do, damned if you don’t is the dilemma which faces many who are responsible for document production simultaneously in more than one jurisdiction. The subject was covered in some of the sessions at IQPC’s Information Retention and E-Disclosure Management conference in London last week, most comprehensively in an interesting hypothetical situation run by Tracey Stretton of Kroll OnTrack and Tahir Khan of Addleshaw Goddard involving a complex set of international transactions, transatlantic implications, litigation and regulation all in one go.

I will not attempt a summary – just to mention it is enough to remind you that those multi-jurisdictional elements require a multi-dimensional approach, and not only in multi-million Dollar claims.

E-disclosure conferences and seminars 2008

I have updated on my web site the list of conferences, seminars and similar events known to me for 2008, with hyperlinks to the programmes where they are available.

I have left up the programmes for the past events, since between them they give a good idea of what people are interested in and what are thought to be the key topics for this year. I say that because conference organisers have a good eye for what is topical, and those which I am involved with (which is most of them) have done an impressive amount of research.

Defensibility of the UK e-Disclosure process

Do the UK courts ever question the manner in which electronic evidence was collected? It is a source of much contention in the US but we have little case law directly on the point here. It is clearly vital to get it right, and equally clear that not everyone does, but why do we not hear more about it?

I listened to a webinar last week. Moderated by Patrick Burke, Assistant General Counsel at Guidance Software, it covered the steps which companies ought to take to be ready for litigation or for a regulatory investigation. Guidance has more than a passing interest in the subject, since their EnCase software is perhaps the best-known of the products which allows a company to take an image of an entire drive or of targeted documents and other data which may be required for disclosure. The speakers were at pains to stress that EnCase is not the only available solution.

I was one of them, bringing a UK perspective to the discussion. The others were Don Little, Corporate Counsel for Rolls Royce in the US, and John Rosenthal, Co-Head of the e-Discovery Group at Howrey LLP. Guidance are sponsors of the UK-based E-Disclosure Information Project which I run – my sponsors have in common that they are all interested in the UK rules, the trends and best practice in e-Disclosure, not just in selling things.

E-Disclosure conferences in London 2008

There are several e-Disclosure conferences in London this year, including a couple which have not been seen in this space for a bit. Conference organisers have a keen eye for what is topical and have obviously decided that 2008 is the year in which people will want to know about e-Disclosure.

So they should: the Commercial Court Recommendations and the new spirit of judicial proactivity in case management are not the only factors which will make it necessary to be on top of this subject.

The Qualcomm CREDO Program

The judge who heard the sanctions part of the Qualcomm case set out a program for devising an action plan to prevent future disclosure violations. UK companies may like to measure their own preparedness against it.

On 30 January I finished a post about the sanctions judgment in Qualcomm v Broadcomm, promising two further articles about it – one on the comprehensive Case Review and Enforcement of Discovery Obligations (“CREDO”) program which Magistrate Judge Barbara Major ordered as part of the judgment, and one expanding on the implications of the judgment for UK lawyers.

I was immediately assailed by a reader who suggested that by the title to the first article – The implications of Qualcomm for UK lawyers – I had already promised more than I had delivered in respect of the latter point. That was possibly true, but I reckoned that 2,000 words on the judgment itself was enough to be getting on with. Other things have kept me busy since then and I have not got back to it.

There were further developments on the sanctions side of this case last week, so I thought I had better cover the original CREDO point. The first round, at least, of the “comprehensive case review” has taken place. What were its intentions, and why may it be relevant to those who practice in this area in the UK?

Discovering what to do about e-disclosure

The paucity of blog postings recently does not imply that there is nothing to write about On the contrary, there is too much going on to stop and write it all up. A quick summary of what has come up in the last couple of weeks gives you some idea of what the E-Disclosure Information Project does.

First, a recap on what it is for.

The broad idea is to promote understanding of e-disclosure by acting as a link between all those who have an interest in e-Disclosure – corporations, practitioners, suppliers and the courts. The expression “to have an interest” does not necessarily imply actual overt expressions of interest, nor even a recognition that the subject is of relevance.

Guidance on the Human Factor in eDiscovery

My first port of call in New York last week was Patrick Burke, Assistant General Counsel at Guidance Software. I did a webinar with Patrick over Christmas (Americans don’t really do Christmas I discover – the last e-mail in on Christmas Eve came from Patrick, as did the first one of Boxing Day) and it was good to meet him at last after the hours of discussion we had about that.

I first came across Guidance Software at the IQPC conference in London last May, when Victor Limongelli (now CEO of the company) gave a talk which impressed because of his sure grasp of the UK court rules. Regular readers will know that I focus closely on the matching roles of rules and technology as weapons to keep the costs down, and it is rare to find any supplier, still less a US one, who articulates that viewpoint.

E-Disclosure – What does the court expect?

His Honour Judge Simon Brown QC told a London conference audience what the UK courts expect from those who appear before them when electronic disclosure is a big element in a case.

I have written separately about the conference organised by Marcus Evans in London on 14-15 January 2008. His Honour Judge Simon Brown and I were speakers on the second day with a session billed as The Mutual Expectations of Clients, Lawyers and the Courts.

The first day included two sessions which prepared the ground which we had proposed to cover, not least a very interesting Panel session on reducing the costs in which Judge Brown took part and which had ranged widely. That allowed us to take a less structured approach than had been planned.

Marcus Evans conference – E-Discovery Strategies

A good e-Disclosure conference will make you want to know more or, at least, will ring an alarm bell in due course. There are pitfalls to know about and practice development opportunities being missed.

I am just back from a conference in London organised by Marcus Evans with the title E-Discovery and Document Management Strategies. The fact that I was one of the speakers does not disqualify me from saying that it was one of the best I have been to.

I will write separately about the session which I shared with His Honour Judge Simon Brown QC and which was, as you might guess, about the scope which the CPR gives to willing parties and an active judge to bring down the time and costs of e-disclosure.

Nor will I here try and summarise what each speaker said – it would be invidious to pick out any of them in what was a well-balanced programme, Actually, I will make one exception and pick out Browning Marean of DLA Piper US LLP, who displayed his usual knack of giving a near-universal viewpoint which transcends national boundaries and applies equally to large and small cases. It comes down to knowing your stuff and anticipating costs.

Victor Limongelli now CEO of Guidance Software

Guidance Software announced last week that Victor Limongelli has been appointed Chief Executive Officer.

I met Victor at a conference in London earlier this year. He is easy to spot – an American executive who speaks knowledgeably about the English court rules tends to stand out. His subject was Reducing the growing cost of eDisclosure and he was convincing on the need for UK and European corporations to (as he put it) “get their arms around their company’s e-mail and electronic documents” for litigation and regulatory reasons, to track suspicious activity by employees and – not least – to control the costs of doing business.