The new edition of American Legal Technology Insider

The latest edition of Charles Christian’s American Legal Technology Insider has been released, bringing its usual colour to the bare recitals one gets in press releases.

Although Charles Christian and I may appear to have a fair amount in common – both English, both lawyers who write about legal technology, both willing to be acerbic where that seems justified (“edgy” is the word somebody used of me this week, whereas Charles seems to favour “grumpy and opinionated” as his own label) – we are in fact different people with different subject areas. I say this because a press release this week credited me with being the editor of the American Legal Technology Insider and the Orange Rag blog.

We each got our respective rebuttals in within seconds. Charles was concerned either that he had inadvertently agreed to sell his stable (in which case he wanted a cheque by return) or that he had unwittingly committed himself to making a speech about the minutiae of the Practice Direction to Part 31 CPR; I was equally concerned that I might find myself expected to discuss practice management systems, accounts systems or digital dictation.

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Masters Conference appoints new Cabinet members

The Masters Conference yesterday published the list of those in its Cabinet. New members include Shawnna Childress of LECG and me – if one is going to join a committee, then one which includes the co-founder of Women in eDiscovery and joint author of eDiscovery Plain and Simple is the one to be on.

Conference organisers are increasingly involving their participants and others in shaping the strategy and agenda for forthcoming events – I am spending a lot of of my time doing this, formally or informally and, whilst it can be hard work, I prefer this to simply poling up and speaking. At a simple level, this does at least ensure that I don’t find my subject overlapping with the one which the audience has just heard, as happened to me once.

FTI webinar: financial, transactional and operational databases in e-disclosure

FTI Consulting are presenting a webinar on structured data on Thursday 19 November at 1300 GMT. The subject is perceived by some as too difficult to talk about, but it cannot be ignored.

Elephants have provided a recurring theme throughout this blog. They are large, hard to get your arms around and difficult to describe to someone who is not familiar with them – which makes them the perfect model for the structured databases in which a very high proportion of company information resides.

E-mail, and user files like Word documents and Excel spreadsheets spring readily to the mind of a lawyer required to disclose “documents”. Sources such as HR and financial databases tend to be overlooked, largely because they usually bear little relationship to the conventional idea of a “document”.

Legal Inc publishes e-disclosure podcast series

Litigation services provider Legal Inc has published the first two in a series of ten podcasts about electronic disclosure. They take the form of a dialogue between Legal Inc director Lisa Burton and me, and will between them provide a comprehensive overview of the rules, the practice direction to Part 31 CPR, and cases such as Digicel and Abela. We also discuss practical things such as preparation for case management conferences, the use of external suppliers, best practices, problem areas, global trends and pending developments.

FTI webinar – Controlling E-Discovery Costs

FTI Technology are presenting a web seminar on November 5 (that’s today) at 2pm Eastern | 11.00am Pacific | 19.00 GMT. Called Advice from Counsel: In-House Pros on E-Discovery Costs Containment, it is presented by Ari Kaplan, who will present the results of a survey of in-house counsel and senior IT people.

Although the survey was of US companies only, the results are universal – this is not about FRCP or sanctions but about the expectation that in-house legal teams will achieve the same or more with lower budgets and fewer resources, including the spend on outside lawyers. This is happening everywhere and the conclusions are as valid in countries beyond the US. We have gone way beyond shaving down charging rates and other minor economies, and into fundamental reassessments of what is really necessary to achieve the objective.

The answers inevitably lie in a mixture of process, people and technology. The perfect model, viewed in the abstract, is that companies reserve their external lawyers for the things which they do supremely well, and keep control of as much as possible of the rest by a mixture of in-house teams and technology and by direct relationships with providers of software and services.

The primary target is to cut the cost of review by minimising the amount of data sent to the lawyers – there is much more money to be saved by reducing the lawyer hours than by trimming the charging rates. The newer generations of clustering and visualisation tools are not merely more easily understood and accurate, but deliver results which can be audited and, if necessary, re-run with different parameters. The word “repeatable” means more than being able to validate the results – if the first-pass processes are routinely done in-house, then conclusions reached last time can be re-used when similar ground has to be covered for a different case.

I have written a fair amount about this shift – lawyers must either embrace it and learn to fit into the clients’ processes, or do without the work. It will be good to have some statistical backing for what is known to be happening, and Ari Kaplan’s overview and analysis will, like the results themselves, be relevant beyond the US.

Registration is here.

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LexisNexis eDiscovery conference in Singapore

As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.

The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named.

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.

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?”

PosseList wrapup of the Masters Conference

The PosseList has managed to get out a full report of the Masters Conference and the first part of its notes on ACC Boston whilst I have yet to note up either Judge Facciola’s eleoquent keynote address at the Masters Conference or anything about the LexisNexis conference in Singapore.

My excuse, if such be needed, is that there is only one of me and that the inordinate amount of time spent on aeroplanes recently cuts into the writing time. I do not, in any event, lay claim to journalistic timeliness. Besides, as I have already noted, Patrick Burke of Guidance Software has already written up Judge Facciola’s speech and the judicial panel at the Masters Conference and now we have the PosseList’s Masters Conference wrap-up. As that makes clear, they had “various reporters” at the conference which meant they could attend sessions which ran parallel to each other.

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.

When is an EDD quotation like a cold beer?

These posts sometimes acquire a life of their own in the writing especially where, as with this one, they are done in stages across a rather long day. What began as an account of my last day in Singapore turns into the observation that EDD quotations are like a cold beer on a hot day – if you really need it right now then you may have to pay more for it.

Up at 4.00am this morning [Friday], for no more obvious reason than that my internal clock was unsure what time zone it was in. It had probably caught up with Washington, but was actually now in Singapore – but not for much longer. I stayed awake throughout the second day of the conference (just as well really, since I was chairing it – how embarrassing would that be?) and went out for blameless suppers with Browning Marean, followed by early nights, respectably ignoring the fact that Singapore has a larger number of very beautiful girls than any city I have been in. It is probably that which has caught up with me (early nights, I mean, not being respectable). If you go to bed four hours earlier than usual then you wake up four hours earlier. Nothing to do with time zones.

The British invade Washington again, this time to talk and learn, not burn

To say that electronic discovery is international connotes more than the cross-border ramifications of multi-jurisdictional litigation. There is commonality in the problems, the rules and the solutions, to say nothing of the implications for law firms of new ways of working. The Masters Conference was an opportunity to explore many of them.

My ambition to report on the Masters Conference in Washington before reaching the LexisNexis e-discovery conference in Singapore was defeated by various things – only so many hours in the day for one thing, and no power sockets on the planes. As I begin writing this, it is 4.00am in Singapore a week later and the conference here has been and gone.

British liberties viewed from the Land of the Free

The subject of liberty came at me in three different ways on a single Sunday morning in Washington a few days ago. The top article in the Washington Post was headed “In today’s viral world, who keeps a civil tongue” and concerns what it referred to as “the rules of civil discourse”, specifically in relation to the freedom to say what you please. I went to the Arlington National Cemetery, and gazed on the thousands who lie buried there who fought for our freedom. My way back was blocked by a march demanding gay equality, and specifically the freedom of people of the same sex to marry.

Discovery explorers need a map

You can kill an analogy with overuse, just as every cliché was once a clever new phrase. Describing e-discovery / e-Disclosure in terms of explorers and maps, however, does not become hackneyed, because exploration itself continues to excite and because it works very well as a parallel.

Each nation has its own stirring examples, and they come from all over the place. What do I get if I take the first ones which come to mind? Mallory and Tenzing climbing Everest in the year I was born. Howard Carter and Lord Carnarvon in Tutankhamen’s tomb. Sir Walter Raleigh in Virginia and South America. Scott, Shackleton and the others in the snowy wastes of Antarctica (I have a soft spot for Sir Vivian Fuchs, leader of the first overland crossing of Antarctica in 1958, if only for the newspaper headline “Vivian Fuchs off to Antarctica”). Doctor Livingstone greeted by HM Stanley in an African clearing. The use of maps necessarily implies that someone else has been there first, but is no less interesting – I have just bought a large-scale ordnance survey map of England in digital form so that I can scroll across it as we drive (as my wife drives, I should say), so interested am I in the landscape through which we pass.

If you are American, you do not need to go abroad to find stirring examples of exploration, and many of them are more or less in your own backyard. The names which come to mind are those of Lewis and Clark, whose expedition of 1804 to 1806 was the first overland exploration to the Pacific coast and back. That had a political and commercial purpose going beyond mere exploration for its own sake, since the US was in the process of undertaking the Louisiana Purchase, and neither it nor the French who were selling it, knew how big the acquisition was. We now know that it comprises about 23% of the modern US.

I am brought to this apparently random line of thought by a reference in Tom O’Connor’s recently published Top 10 EDD Tips for General Counsel, which can be found on the Law Technology News website (the second article on that page) and were the subject of Tom’s Masters Conference webcast. One which caught my eye was Point 5 which reads:

Talk to your IT department. They know how to make the map. You are Lewis and Clark, they are Sacajawea. You absolutely cannot navigate without them.

Off to the Masters Conference in Washington DC

I have gone to the Masters Conference in Washington DC.

See Packed programme for Masters Conference.

I am there until Wednesday evening, staying at the Willard Hotel.

See you there.

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Packed programme for Masters Conference

The 2009 Masters Conference takes place in Washington on 12 and 13 October. Its title, Global Corporate Change – Navigating Discovery, Risk and Security covers only a fraction of the subjects covered in two days.

The best part for me last year, and the main reason I went, was a keynote speech by US Magistrate Judge John Facciola which I reported at length (see Leadership in Litigation). This took the debate beyond court rules and litigation technology and up into the importance of the court as a component of society. There is a direct line between competence and the efficient use of technology (on the one hand) and access to justice (on the other). Lawyers, judges, and governments which do not to make the courts accessible to everybody are not just failing their clients, the parties appearing before them or those whom they govern. Judge Facciola has the knack of making these things sound not just worthy sentiments but objectives directly related to our daily work.

What makes this job interesting is the breadth, from the minutiae of data handling to matters of state policy. There is almost no corner of the field which is not touched on in the course of the two day conference. If I pick out just the sessions from the program on the entirely random basis that I know the speakers, that is enough to give you the flavour of it.

Posse List post profiles Project

I find myself in the unusual position of being the subject of a blog post rather than the writer. I was interviewed in Brussels last week by Gregory Bufithis of the Posse List which describes itself accurately as “your source for news, commentary and trends in the contract legal market”.

The venue was IQPC’s Brussels eDisclosure Conference, and the resulting post IQPCs Brussels focus: ChrisDale and the e-Disclosure Information Project serves as a better history of the e-Disclosure Information Project than I have written for myself. That matters only because it illustrates how far the electronic discovery world has moved in two years and, in particular, how views and information are being shared around the world. The problems are the same, and no longer merely in jurisdictions with a history of common law discovery. The solutions, and in particular the technology solutions, developed for civil litigation purposes, are readily applied to regulatory investigations and to internal purposes such as fraud investigation.

Information retention at e-Disclosure conference in Brussels

I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.

Patrick Burke and Judge Peck

We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about.

Service of UK proceedings via Twitter

The UK High Court’s recent permission to serve an injunction via Twitter may be a first, but it has respectable antecedents and the authority of the rules.

The relevant part of Rule 6.15 CPR says this:

(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.

(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service.

(3) An application for an order under this rule –

(a) must be supported by evidence; and

(b) may be made without notice.

Learning in good company at IQPC e-Disclosure Conference in Brussels

I got back late on Thursday from IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels. I was on three panels on the first day, attended several others, met or re-met countless people, and yet seemed in retrospect to have spent most of the time eating and drinking. You will forgive me if this post deals with impressions rather than detail.

It is hard to convey how enjoyable these conferences can be. The concentration of raw information and informed comment into two days is not incompatible with having a good time. No one goes just for the pleasurable side, but you do not need to be an information management junkie to enjoy it, whether in the session rooms, in the networking breaks between formal sessions, and in the restaurants and bars afterwards.

Chris Dale at IQPC Brussels

I will write about some of the sessions separately, and this post is just an overview to give a broad impression for those who have not yet attended one of these conferences. IQPC do them better than most, and months of serious planning goes into them. Of course, if your company has no electronic documents or if your litigation department clients foresee no need to sue, and no risk of being sued or being visited by a regulator, then an e-disclosure conference is not for you. For anyone else, it is a cost-effective way of catching up with what is going on, in pleasant surroundings and congenial company. If part of the appeal is hearing from those who do know about the subject – the legal, practical and technological aspects – another, and under-rated, aspect is the opportunity to mix with those whose knowledge, or lack of it, is no higher than your own.

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.

e-Disclosure is like opera – you do not start with Wagner

I am fond of analogies, as you know, and everything from motorway signs to Roman bridges gets pulled into service to illustrate e-disclosure points. It seems to be catching: Craig Earnshaw of FTI Technology in London came up with another when I was speaking to him a few days ago.

I often make the point that suppliers’ inevitable focus on their bigger cases tends to obscure their willingness and ability to work cost-effectively on smaller matters. They have only one home page on their website and it is not surprising that they use it to promote the higher end of their range.

It is like introducing people to opera, Craig said. You do not encourage newcomers to sit through the Ring Cycle, but introduce them more gently with Puccini.

It is a good parallel, embracing the sophistication, if that is the right word, of Wagner, the endurance needed to absorb it, the scale and the technical appreciation required. Most electronic disclosure cases are not that big or that sophisticated, and do not require of the user that he or she is deeply knowledgeable about the technology. The challenge of getting someone to attend their first opera is akin to the challenge of getting lawyers to undertake their first e-disclosure exercise.

Flying the wrong messages across cultural boundaries

Most broad ideas of the characteristics which identify people from other races and cultures contain a grain of truth as well as a dollop of unfairness. The excitable French, stoic Britons and [supply your own words here] Irish turn up in a story in the Sunday Times travel supplement.

An Aer Lingus plane is approaching Paris on a flight from London. An announcement is made in French and in English. The French get into a tremendous flap with (I embellish here somewhat) much “Zut alors!”, “Sacred blue!”, “Where is the pen of my aunt?”and all the other expressions of excitement which we associate with the Gallic nature. The Britons, meanwhile, sit calmly, with what appears to the French as a degree of sang-froid quite inappropriate to the circumstances, whatever they had heard about British stoicism.

It transpires that the cabin crew have got the tapes muddled up. English-speaking passengers were merely advised to return to their seats and fasten their safety belts. The French, however, were told to prepare for an emergency landing, to note where the emergency exits were, and to await instructions from the captain.

Stories of such mutual incomprehension and cultural stereotypes turn up from time to time in the context of foreign data collections (where the standard advice, of course, includes the suggestion that you refrain from calling your hosts’ language “foreign”). Data collection experts instructed by a US law firm went to a subsidiary company abroad to collect evidence for litigation, with the understanding that the culture of the country was that staff were immensely loyal. The collectors were puzzled to find that they were obstructed at every turn, and it took a long time to discover that whatever they had said on their arrival had been interpreted as meaning that the subsidiary’s senior management was under investigation. The employees were just being immensely loyal – exactly as the lawyers had been told they would be.

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The best technology is useless without the right people

In electronic disclosure as in everything else, the technology itself is unlikely to cause the problems. For the moment at least, it needs direction from human intelligence. Money spent on equipment is wasted if not supported by a brain cell or two and some project management skills.

The information boards which are spreading along Britain’s motorways are a good example of  technology applied to a useful, everyday purpose. They give the ability to forewarn drivers of danger or delay ahead so that they can slow down, plan a diversion or whatever. You can now even see what the notices say from the website at TrafficEngland – I guess it is technically quite simple  to repeat the information there but that makes it no less useful and it seems very clever even if, as my picture shows, half of them merely consist of nannying advice – there are few things quite so annoying as getting unsolicited advice from people you despise.

Evidence Eliminator does the trick for Phoenix Four

A director who destroyed documents in anticipation of a government investigation may not be subject to any penalty for the bare act of destruction divorced from any actual proceedings against him or his company. If that is indeed the position, there will be calls to change it. Bad cases make bad law.

I will not try and make sense for you of the story of how the Phoenix consortium acquired carmaker MG Rover for £10 in 2000, departing five years later as millionaires when the company crashed into administration. You will get the picture from the Sunday Times headline How the Phoenix gang plundered MG Rover and from the paragraph in the article which reads:

While it stops short of accusing the Phoenix directors of fraud, it paints a picture of a group of men happy to pay themselves tens of millions of pounds, much of it stashed in an offshore trust, while the carmaker ran up big losses and ultimately ran out of cash, throwing 6,000 people out of work. They ignored corporate governance guidelines, switched valuable assets out of the car company into their own names, lied to MPs about the nature of their dealings, and bawled out the few advisers who dared to question the legality — or morality — of their actions.

Reaching informed agreement that e-disclosure is not needed

Having just published an article about whether electronic disclosure is needed in all cases, I turned to Ralph Losey’s blog to discover that he had just published an article about whether electronic discovery is needed in all cases. We do have fun on our Sundays, don’t we?

My article is called How would Bray & Gillespie play in the UK?. The references in it to the propriety of making informed decisions against e-disclosure are a mantra which I often include to make it clear that electronic discovery / disclosure is not the inevitable outcome; the target is the right decision and the proportionate decision, and such a decision cannot be made without weighing and costing all the options. Ralph Losey’s article is called Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules which explores, amongst other things, the extent to which the obligation to discuss e-discovery at a Rule 26(f) conference can properly be discharged by a cursory agreement to opt for paper; the alternative, plastic, is seen as being:

where you waste a ton of money paying vendors to chase down unimportant ESI and pay young lawyers to read emails about what people had for lunch, which are then produced to each other on plastic CDs.

Ralph asks “Is there a conspiracy among attorneys, officers of the court, to disobey the very rules that they have sworn to uphold?” and concludes that he is not willing to go quite that far – yet. There are others in the US who would say that, and I used almost exactly the same words, mutatis mutandis, on my first outing before British judges two years ago, with the tactful rider that judges often made themselves silent co-conspirators by not making sure that the right questions had been asked. Ralph puts the same point this way:

[Judges] approve by their silent acquiescence. Not all do, of course, a few e-discovery oriented judges speak out, and speak loudly, but they are a small minority. Most judges just look the other way.

Using Twitter to talk to your clients

My article Twitter as a source of e-discovery information drew a comment from Nick Wade, Group Product Manager for Symantec’s Enterprise Vault – Discovery. I had focused on Twitter as merely a source of information. Nick draws attention to its value for keeping in touch with customers, and points to other resources. His comment is as follows:

Great article on the expanding role of social media in our world of Discovery news, Twitter being one of those prime avenues of faster information dissemination. I was also interested as I worked at Mallesons quite some time ago, and I still enjoy seeing my old colleagues’ names in the stream.

I also think an excellent example of Twitter’s use is to find like-minded people and have a new ability to engage in short conversations with them. Shel Israel (http://twitter.com/shelisrael) has written a fine book about this and I’m reading it now; Twitterville. I heartily recommend it, as it’s a strong follow-up to his first book co-written with Robert Scoble (Naked Conversations). And here’s one final use; a lot of companies use it to find new avenues with which to talk to their customers. We do it at Symantec and it has been very useful not only to point people at articles, releases, technotes, webcasts and so forth, but to help with problems and resolve questions – all more quickly than we could before. Companies should be in Twitterville (as Shel says).

One quick thing – I’d certainly find it useful if you provided a link to Michelle’s twitter (in this instance) [quite right - have done so].

Twitter as a source of e-discovery information

The best way to get informed about e-disclosure / ediscovery news first thing in the morning is to follow Michelle Mahoney’s overnight tweets (they are at http://twitter.com/michmahon). That is “overnight” in UK terms, since Michelle’s day starts rather earlier than ours – she is Director of Applied Legal Technology at Mallesons Stephen Jacques in Melbourne, which gives  her a head start on the rest of us (or perhaps she does them at night – I’ve rather lost track after a day when I went to bed at 4am).

The last few minutes have brought one of those confusing conjunctions of events which turn up from time to time. As I started dictating this post, I received an e-mail announcing Virtual LegalTech on the 19 November at which Michelle, George Rudoy (Director of Global Practice Technology at Shearman & Sterling), Christopher Byrne (General Counsel at Wave Software) and I are due to talk about international e-discovery. I had barely finished the first sentence, when another e-mail turned up reporting that George Rudoy was following me on Twitter. Since it was George who first suggested that I used Twitter, the timing was apt. I am humbled to see that the few people whom George is following include not only Michelle Mahoney and me but the New York Rangers.

7Safe blogs to keep us informed about e-disclosure forensics

E-disclosure Information Project sponsor 7Safe has joined the growing number of businesses using a blog to pass on information about what it does and what is happening in the company. It is a powerful and cheap marketing medium whatever you are promoting.

It will not surprise you to know that I believe strongly in the role of blogging as a means of conveying business information. My blog began as a backup resource to my website, a place, as I pictured it, where I could drop snippets of information without the relative formality and structure which a website requires. It speedily became my main output platform, a place where I sometimes put thousands of words each week. Although I intended it primarily as a feeder for my website, most of the traffic in fact goes the other way, with my website acting as an index to recent blog articles. I do the same for a law firm client and am about to start another. It works.

Who needs a bridge when the river goes away?

The mechanics of electronic disclosure are not an inherently legal function like Will writing or conveyancing. Instead of assuming that the work will always be theirs, lawyers must ask themselves why the clients should not divert it somewhere else.

There is something comforting about the certainty that you will always be needed. Doctors can always be reasonably sure of a steady flow of patients. Farmers and others engaged in food production know that people will always need to eat. It is not yet foreseeable that we will do without some form of energy piped into our homes. Fashions in clothes may change but we will always need something to wear.

Many apparent certainties, however, do not in fact last for ever. An article in last week’s paper predicts the end of fixed line telephony. A petrol station or roadside inn finds that its busy road is bypassed. I live between a canal, the latest thing in transportation when it opened in 1790, and the railway line opened in 1846 which killed canal trade overnight. Sometimes the need for a skill set drops away – a Western doctor specialising in, say, cholera, rickets and consumption came to need new areas of specialisation.

The need to handle torrents of documents has historically generated floods of work for lawyers,  subsidising other areas of the firm’s practice such as the delivery of high value advice from their expensive offices as big cases brought big disclosure exercises and the opportunity to turn their assistants’ hours into large bills. What, however, if document handling flows away to others?

Guidance Software launches EnCase Certified eDiscovery Practitioner Program

As you will have gathered from recent posts I am not a supporter of the idea that anyone working in the ediscovery / e-disclosure field must have a certificate to prove their competence. My opposition is based largely on the near-certainty that such a requirement will operate as a bar to new entrants and on the probability that any organisation purporting to offer generalised certification will speedily become a self-perpetuating oligarchy bound up in its own bureaucracy.

I exempted from this opinion the specialised training required for the proper use of highly technical applications – those hiring people who purport to know how to use such products clearly need some evidence that the employee or consultant has reached the developer’s standard of competence, and I cited Guidance Software’s EnCase as an example.

Guidance Software has now supplemented its wide range of training courses with the new EnCase® Certified eDiscovery Practitioner (EnCEP™) program which adds to the bare skills needed to use EnCase by extending out to include planning, project management and best practices in its use. It seems to me to be a logical extension of their application training that EnCase users should understand the legal and the technology context in which EnCase is to be used. This is a step in the right direction.

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New edition of American Legal Technology Insider

The current edition of the American Technology Insider is out, with Charles Christian’s report on ILTA 2009 and some spending statistics which are realistic rather than cheery in the short-term at least. There is also, as always, a succinct summary of the latest industry news.

The American Technology Insider introductory page explains what is covered in ALTi, and how you can get one delivered to your mailbox for free. There is also a section headed “For PR and marketing departments” which makes it clear that ALTi is news-driven rather than led by advertising.

The British version seems to have been  around for ever. The means of publication may have changed but the format and the style remains as it began, probably with a report of the implications for lawyers of Charles Babbage’s planned Differential Engine in 1822. There is no obvious reason to change a formula which works and, more than a year after the launch of the American edition, that formula seems to go down well there as well.

Consistent with its own emphasis on short, snappy reports, the new edition of ALTi carries a quotation from Donna Payne of the Payne Group: “If you can’t demo a product in 15 minutes, you don’t have a product”. The point, I think, is not so much whether you have a product as whether you can get an audience for it. I went round the ILTA booths asking for 15 minute demos. They all seemed a bit taken aback by this, but I have to say that they all rose well to the challenge.

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Fifth Annual eDisclosure Forum in London for only £99

London’s Fifth Annual eDisclosure Forum takes place on 13 November. Run by Thomson Reuters with Sweet & Maxwell, it is generally agreed to be one of the best in the London calendar. The delegate fee is only £99 + VAT, and any firm or company which anticipates litigation involving electronic documents (and who will not?) in the coming year should be there.

It is not just the very low delegate fee which makes this conference attractive. It is the only one whose program is designed from the beginning by its co-chairs rather than by the conference organiser. I know that, because I am again one of them. An e-disclosure conference must be simultaneously sensitive to local needs and reflective of international developments and there is a relatively small pool of people able to speak with authority at both levels.

The UK is well-placed between the EU and the rest of the eDiscovery world

The first big eDiscovery conference of the autumn is IQPC’s Information Retention and E-Disclosure Management Europe conference in Brussels on 30 September and 1 October. I am going there mainly to take part in a panel organised by Guidance Software involving, amongst others, US Magistrate Judge Andrew Peck of the Southern District of New York, and Senior Master Whitaker of the Queen’s Bench Division, Royal Courts of Justice in London. We are to be joined by three European judges, Judge Abeline Dorothea Reiling, Vice-President of the Amsterdam District Court, Judge Frank Richter of the Supreme Court of Hesse, and Judge Carla Garlatti of the Court of Appeal of Venice.

Although the UK is, perforce, part of mainland Europe for many purposes, one of the (many) differences lies in our respective systems of domestic law. The UK has a common law system very much closer to the US, Australia and Canada than to France, 22 miles away from Dover. The discovery of documents is a common law concept, and one which most of Europe has largely managed to avoid until recently.

How was ILTA for you?

There are two halves to the question “How was ILTA for you?”. One is the personal reaction. Did I learn something and see some interesting technology? Did I meet interesting people? Did I have fun? The answer to all these questions is Yes, as I expected. The more serious question concerns the state of the industry, by which I mean the lawyers who are involved in e-discovery for litigation and regulation and their clients as well as those who provide software and services to them. Let’s take the easy bit first.

I am luckier than most at ILTA. I have no responsibilities apart from talking to pleasant people about a subject in which I am interested. I have no stands to put up and man; I do not have to do any hard selling or make any buying decisions; such formal meetings as I have are a pleasure rather than a burden; I do not have projects running back in the office and anxious clients to keep contact with; I have no staff to be responsible for nor is anyone responsible for me. My sole “duty” is to see people I know and like, to meet people I do not know, and to write about some of it afterwards.

On that basis, I am easily pleased. The venue was just fine, the organisation impeccable, the sessions and booths interesting, and I was in conversation with agreeable people from arrival to departure except when I chose to sit quietly writing. A lawyer from the US, the UK, or anywhere else where documents are collected for civil proceedings could have informed him or herself at any level – those new to the subject get a gentle immersion which they can take at their own pace, whether in sessions, by going round the stands or by just talking to others; those who want a higher level of learning, technology or discussion can easily find it.

Divided by a common language

Matters of mutual incomprehension can pass unnoticed. In the context which concerns me, for example,  English and American participants in e-discovery can fail to realise that one is talking about chalk and the other of cheese.

For example, American lawyers and litigation software are all geared around whether  documents are “responsive” or not. That seems the obvious word to use to refer to documents which are “in” as opposed to “out”. But the importance of responsiveness follows from an aspect of US discovery which is very different to that which obtains in the UK – under the US rules, discovery is given of documents which “respond to” a request from opponents. English disclosure does not work like that – each party self-starts on its disclosure, at least for the standard disclosure which initiates the process. The concept of being “responsive” is therefore meaningless save in the broader sense of finding a “response” to one’s own search.

The gap exists not so much because one is using terminology which the other does not understand, but that neither appreciates that the terminological difference exists at all. You can miss each other in the dark like that, whether talking of discovery or international politics.

At least everyone in America has now heard of Scotland

One of the reasons I go to American conferences is to fly the British flag as serious players in the electronic disclosure world, and to answer questions about it. The Civil Procedure Rules apply only in England and Wales. The only thing anyone in Washington wanted to talk about was Scotland.

It would be easy, staying here in the UK, to underestimate the level of American anger at the decision by Scottish Justice Minister Kenny MacAskill to release the Libyan terrorist Al-Megrahi who was convicted of playing a part in the downing of Pan Am Flight 103 in December 1988. One becomes cynical of government-level complaints designed to look populist at home and to safeguard contracts or diplomatic relations abroad. Nevertheless, it was interesting to realise what very strong feelings run amongst ordinary people in America about the decision to release Megrahi.

One of the issues is that Americans, understandably, find it hard to distinguish between the component parts of Europe, let alone the United Kingdom. They lump the UK in with Europe, for a start, believing that we are part of it; they are puzzled to discover that there is a mismatch between the political and the cultural, and that Britain does not feel part of Europe in  most senses. This is part of a long tradition: Lord Raglan, commander-in-chief of the British Army in the Crimea in the 1850s, persisted in referring to the enemy as “the French”, notwithstanding that we and France had not been at war since Waterloo in 1815 and that the French were actually our allies in the Crimea.

EDiscovery certification bars new entrants

I said in an earlier article (Recruiting one’s strength for post-recession litigation support) that I would come back to the difficult subject of e- discovery certification. The context in which it came up was that of the individual skills of litigation support professionals, and that is what this article is about. It is worth observing, however, that the assessment of e-disclosure / e-disclosure ability comes up also in other settings, including:

• The competence of services providers to render the services which they advertise.
• The fitness of a lawyer or firm of lawyers to practice in litigation in a world dominated by electronic documents, and of judges to manage cases.
• Specific technical skills acquired by following a curriculum and taking an exam, such as those required to use Guidance Software’s EnCase products.
• Training in the use of a particular application.

Whilst some or all of these link into my subject, I mention them mainly to emphasise that they are not my primary concern here. I am concerned with the question whether individuals employed within a firm or company ought to follow a course of study leading to a piece of paper which demonstrates their aptitude. I will say straight off that I am dead against this, but the arguments to the contrary are not to be lightly dismissed in a single sentence.

E-discovery double-act on video

A few days after advocating the use of YouTube videos to promote new ediscovery understanding, I found myself in one with Browning Marean of DLA. Appearing soon at a cinema near you – well, on PivotalDiscovery.com anyway.

If you put a labrador, like my dog Saxon, down almost anywhere – the Moon, say – it does not take him long to find a stick or tennis ball. He does not look for them, particularly, but they just turn up. Much the same is true of me at an e- discovery conference – I wander around, confident that I will soon come across somebody I know or total strangers who seem to know me (which is one up on Saxon who does not generally get hailed by passing tennis balls).

I was walking around the opening party at ILTA 09 having, as I thought, spoken to everyone I knew, when a figure detached herself from a crowd and introduced herself. It was Kina Kim of PivotalDiscovery. com which describes itself as “the community for ediscovery and litigation professionals”. PivotalDiscovery has links to other sites and articles (including, as it turned out, one of mine), a career portal, and an index of events. It also has videos, including some on YouTube, and can be followed on Twitter.

Collaborating to avoid the end of lawyers

I am not going to give you a full report of Richard Susskind’s talk to ILTA last week. Its basic premise is well-known to anyone interested in this area; I have written about it before; if you are interested, you would have read the book; and anyway, recording a Susskind speech is like trying to catch Niagara in a bucket. If you are not interested in what he says, then you will be dead commercially within five years anyway, whether you are in-house counsel responsible to the board, or a law firm hoping to receive instructions. This does not mean that you have to agree either with Susskind’s premises or his conclusions, but you do need to know what the arguments are.

Richard is not, it seems, much taken by my comparison between him and Private Frazer (see Richard Susskind End of Lawyers resources. Of course, (and as I acknowledged) a précis which characterises his message simply as one simply of doom ignores the fact that the title of his book The End of Lawyers? ends in a question mark. Even that chap who used to wander along Oxford Street with a banner proclaiming the imminent end of the world offered redemption to those who repented, and Susskind does the same. Redemption however, whether in business terms or in the wider spiritual context, lacks a simple road-map. We do not even have a destination, just the certainty that where we are is not the place to be. Recognising that much is a good start.

Instead of summarising the lot, I will pick one or two of the points which Richard Susskind made which seemed to me to have particular relevance in the litigation support context.

Recruiting one’s strength for post-recession litigation support

The Litigation Support Peer Group had a session at ILTA09 called The Future of Our Litigation Support Profession: What Lies Ahead? These are the people who actually do the work, so their reports and their views are worth having. They, and the high-level recruiter who sat with them, were optimistic, and that looks like more than mere hype.

What is interesting about discovery and electronic discovery, at least from where I sit, is that it embraces everything from state policy down to the minutiae of data handling, passing on the way some sophisticated technology, board-level strategy in law firms and their clients, and wider concepts like justice, winning and the like. It is also interesting, however, in career terms and in how firms and companies set up, structure and run the business unit which handles disclosure / discovery. Amidst all these high-flown business, technical and philosophical areas are people, in ones and twos or in teams, who are actually doing the work. Lest the reference to “business unit” may seem to imply big teams in grand departments, I see it as embracing also a single person in a small firm whose management is of projects and outsiders rather than of  internal teams and who does not have to have responsibility for staff to need the tactical and strategic skills which were discussed in the session.

The Litigation Support Peer Group of ILTA is run by and for people like this. One of the many things that is interesting about the industry is that few have grown old working in it because it is itself too young (they may feel that they have aged fast, but that is a different point; Browning Marean claims to be 36, for example). Those in senior positions in litigation support have, by and large, transferred across either from the pure law side or from IT. Every firm has developed its own way of doing things, and three of those sitting on the panel are examples of those who have forged careers and taken on responsibility in what is a whole new area of practice.

Suburban lords a’leaping

One of my roles for sponsors is to pick up the nuances of language differences between American terminology and English English, which amount to a great deal more than remembering to avoid references to “attorney”. It is not that I claim anything special for English English (well I do, of course, but not in this context) but that if you are trying to sell solutions to English lawyers, you should do so in their language.

I was a little taken aback this morning to find a large and very smart black people carrier outside the Gaylord National Hotel with the name “Suburban” proudly emblazoned on its side. That would be the kiss of death in marketing terms in England. It is not that we don’t value the suburbs – people like to live and bring up their children in them and they hold an important place in modern British culture. Like so many other things which we value, however, we simultaneously despise them. Where Americans see (I assume) pleasant detached houses in large green plots behind low white fences, we think of rows of tacky 1930s semis or even tackier 1970s estates, where people with dubious accents and faux-posh expressions twitch their net curtains in between bouts of wife-swapping.

News from the front at ILTA

It overstates it more than a little to call this news. There are rumours of news but, as I write this on Monday, the vendor stands are still being put up and, if there are announcements being made, I am missing them [correction: FTI Technology has just launched Ringtail QuickCull Appliance for In-House E-Discovery sometime between my starting this article and reaching the end. More when I have seen it]. Mind you, you could miss the announcement of a war here.

Gone to ILTA

I will be at ILTA09 in Washington for most of the next week.

I have a few meetings and will go to some of the litigation sessions, but most of the time will pass in bumping into people and chatting. That does not sound like hard work, I know, but it is nevertheless what the job entails. I enjoy it and it tops up what I otherwise acquire by reading and e-mail contacts.

Reports will follow, not necessarily from ILTA itself (no time for that, too many people to talk to) but on my return at the end of next week.

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London meeting of Women in eDiscovery

I am a supporter of Women in eDiscovery and glad to learn from Laura Kelly of Epiq Systems that the London branch is active. They have a meeting on 17 September at the offices of Fulbright & Jaworski, 85 Fleet Street, London, EC4Y 1AE.

Detailed assessments of litigation costs

Everything was a mystery when I became an articled clerk in the late 1970s, not least that label “articled clerk”. Your articles were a period of apprenticeship, and the name also of the document which you and your principal signed by which he was bound to instruct you in the mysteries of legal practice. Of all the mysteries, the darkest was the job of the costs draftsmen. Literally darkest in fact, since these two elderly gentlemen shared a large gloomy room in the basement of the firm’s Georgian building in Gray’s Inn. My visits to them were rare, probably to deliver a file found to be missing from the huge piles which surrounded them. I never saw them anywhere else in the office. From time to time, a pile of files would return from its (always prolonged) stint in the basement, accompanied by pages of narrative and figures on stiff, strangely ruled, paper.

Firms of that size had not, until recently, had litigation partners. The client partner fronted the case, with the unglamorous parts falling to a managing clerk. The managing clerk’s office, also in the basement, had been turned into a stationery cupboard by my day, which gives some idea of his status.

In due course, the two old gentlemen disappeared and their role was contracted out. I recall taking part in only one formal dispute over the costs payable by the loser to the winner. My recollection is that my opponent was as ignorant as I was about the procedure, the principles and the components of the bill.

The costs of arguing about costs were a powerful disincentive to agree them, and it was usually possible to lump the costs in with the settlement figure or agree a rough and ready percentage of the fees actually paid by the winning party. Nothing much changes, I suspect, except that the amounts now are much larger, both absolutely and as a proportion of the sums in issue. Many cases are fought on, long after the parties have lost interest in the issues, because the sunk costs are so high.

Dates with a history

Readers with long memories (I am talking ten days or so here) may recall an article Setting up dates for lawyers in which I extended an olive branch to anonymous Blogger 585 with whom I had taken issue in previous posts. 585 had written two articles about the scope for confusion caused by multiple date values stored within some files. Although I have served my time handling rows and columns of data, there is enough to cover in the wider legal and supplier market, and I rarely get into technical minutiae.

What I am interested in (and why I passed on the links which you will find in my post) is the message to lawyers and judges that, whilst there is a mass of technical detail underlying the handling of electronic documents, it is not generally necessary for the lawyer to dirty his hands with it. The lawyer does, however, need to understand what kinds of problems can arise, so that they can be anticipated, so that advice can be sought on them and so that the implications are factored into the time and cost budgets. One good reason for keeping off technical points is that there is usually more than one viewpoint, and I do not particularly want to play host to arguments about the finer points of data handling.

Web demos allow interest without commitment

Technology companies make little use of technology to deliver their messages. Web demos may lack the personal touch of a face-to-face show, but you can reach many more people. They offer unparalleled opportunities to show off your products without the mutual commitment which a physical demo offers. The committed people will find you anyway – it is the others you need to reach.

The two web resources I talk about (from Anacomp/CaseLogistix here and Guidance Software in a separate article) are two I fell over (and the fact that I did so is perhaps interesting in its own right, since being found by people who are not looking is an obvious plus). I am sure they are not the only ones – let me know if you own, or have found, a web demonstration which is interesting as an informational medium.

I wrote recently about software demonstrations which I organised for Lord Justice Jackson (Jackson Litigation Costs Review consultation ends). Epiq Systems, Autonomy,  and FTI Technology each sent along their best demonstrators and compressed their shows into 30 minutes each. The result was one of the most illuminating sessions I have ever seen.

You probably need to be a Lord Justice of Appeal with a report to write to command such a luxury. It is difficult for lawyers to organise multiple demonstrations and for suppliers to send their best men to every firm or company which expresses mild interest in their product. Not the least of the problems is that lawyers are fairly wary of expressing even mild interest. Merely putting their head above the parapet will, they fear, lead to a constant barrage of calls from an eager salesman keen to convert that mild interest into a sale, preferably a big one and during the current quarter. That dreadful question “so how soon will you be making a decision?” is the biggest deal-killer there is, and fear of it puts off those who simply know want what is out there or even just to understand the concepts. The supplier, for its part, has finite resources and an obvious wish to focus on the key targets. The salesmen himself (and it usually is a him) has an obvious personal interest in spending his time with those most likely to reach a quick decision.

How can we do this differently?

I am sent a fair number of press releases, although many of those who know I am interested in them seem to think that I acquire my information by some kind of intuition. Many of the PRs I do get add little to the sum of human knowledge. Many more, themselves worth following up, join a queue whose head they never reach. It is all a matter of timing. The upside to my refusal to do copy-paste journalism may be more reflective comment, but there are only seven working days in the week and a press release needs a wider context than merely its own news.

As I mentioned in a post last week (The right combination of skills at the best possible price) H5 dropped a press release into my InBox as I was writing an article about litigation lawyers dividing up cases and passing on the functions which they either do not do very well or cannot do cost effectively (or “cheaply” as the client would put it). I had in mind the marketing collateral, as well as the working benefits, of an approach which shifted the focus away from charging rates and towards placing tasks where they could be done best. The immediate context was outsourcing, for example of litigation coding and first-pass review, but I made the point that such a division of labour may be a marriage of equals rather than merely lawyers hiving off the unprofitable stuff and sending it down the food-chain. The H5 press release related to just such a marriage of equals, in this case between H5 and O’Melveny & Myers.

The value of elephants as an illustrative example

It occurs to me that elephants have turned up more than once on this site as a source of parallels or illustrations. Their first appearance here was in May, when my attention was caught by some large plastic elephants in a hotel pool in Orlando (see Describing the ediscovery elephant). I concluded there that what discovery and elephants had in common that you could describe both of them to a blind person but that their impression ”though broadly accurate in outline, would inevitably be hazy on detail”.

A few days ago, comparing the UK and US approaches to e-discovery / e-disclosure in an article called Sugaring the e-disclosure pill , I said “On our side, it is the elephant in the room which no one discusses. In the US, it is just an elephant, big, ungainly, and very expensive to feed”.

Craig Ball was taken with this example, and leaped smartly in to point out that the expense of feeding elephants is only the beginning of the problem. You then have to deal with what results from feeding them. Craig says that he is “among the ranks who clean up after the elephant”.

The e-discovery black box

I am not sure how they keep the standard up, but CaseCentral has been publishing a constant stream of cartoons about e-discovery which must have done wonders for their profile. If I copied every one I liked, I would by now have run out of my allocation of storage space.

A recent one called The e-discovery black box encapsulates well the lawyer’s understanding of what goes on between asking “the system” a question and getting the answer. Charles Christian has beaten me to its republication, and it is easier to link to his copy than to make my own.

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How big is the London e-disclosure market?

I may have brought you here under false pretences. I have no idea how big the London e-disclosure market is and I do not think that anyone else does either. I occasionally hear confident assertions suggesting that there is either much more or much less e-disclosure going on than people think but, since the starting point for these relative assessments is never specified, it is hard to deduce what “much more” or “much less” actually means. There is much less here than there is in America, but the same is true (for different reasons) of caribou and McDonald’s outlets. It is a statement of the obvious, rather than a valuable piece of market intelligence.

Sugaring the e-disclosure pill

My adverse comments on a post by an e-disclosure blogger known only as 585 bring reactions from Craig Ball and from 585 himself. What level of debate gets the messages across? Politics shows us how easily we can turn people off a subject.

You can track the course of the sun by the flow of the e-mails. First you get the Australians at the end of their day. England gradually wakes up and then, in the late morning, the first messages start coming in from America’s east coast. By the end of our working day, when English e-disclosure cyberspace has only me and Jonathan Maas in it, the west coast of America is in full flow. Then, before I go to bed, Australia starts again. So regular is this relationship between the sun and the e-mail traffic, that to get a message from Austin, Texas, at breakfast time makes you wonder if Phaëton had not once again taken the reins of his father’s chariot and driven the sun off course (oops, sorry, a few days’ immersion in the language of Sir Rupert Jackson’s report, as I have just had, and classical allusions start popping up everywhere).

Jan Eyck: The Fall of Phaëton

It was not Phaëton burning up the earth, but the doyen of America’s ediscovery commentators, Craig Ball, burning the candle at both ends. He had read my post Well-justified anonymity of Jackson commentator. To recap, that article was about an anonymous blogger, known only as 585, whose comments on Lord Justice Jackson’s 650 page Preliminary Report on civil litigation costs included a 625 word exposition on the proper way to disclose PSTs (Sir Rupert had apparently fallen short of the standards to be expected of a senior judge in his mention of this subject) and a disquisition on the imponderables which arise when estimating e-disclosure costs which, again, suggested to 585 that his lordship’s technical grasp was not as good as – well, as 585’s own grasp. Other articles were rather too free, to my eye, with imputations of incompetence on the part of lawyers and consultants involved in e-disclosure cases. 585’s article is called Electronic Discovery: Lord Jackson Report.

Electronic Disclosure – Jackson by numbers

I have some heavyweight writing in hand at the moment involving, amongst other things, an analysis of the costs figures which Lord Justice Jackson set out in his Preliminary Report on Litigation Costs. Most of my articles come from my head, fortified by occasional references to other sources. These heavier papers are rather different, with lots of cross-referring between, in this case, the Preliminary Report, its Appendix 19 and the Civil Procedure Rules.

With that section done, something made me look back through my as-yet unfiled InBox to the week before I went on holiday. I had a vague recollection that I had not followed up a message from Laurence Eastham, editor of the Society for Computers and Law’s excellent magazine and website. I found it eventually – a recommendation that I look at an e-disclosure article on the Computers and Law site. Remorsefully, I looked it up – to find that it was all about the costs figures which Lord Justice Jackson set out in his preliminary report. I could have saved myself some research.

The right combination of skills at the best possible price

“Outsourcing” is just a label for the distribution of functions into the hands best equipped to perform them at the lowest cost. Both the functions and the relative costs change over time and need constant re-evaluation. Cost reduction involves more than the lowest rates, and the right marriage of skills does not necessarily require foreign adventures.

I wonder if it was wise of me to write about outsourcing (Do two outsourcing stories in one week presage a trend?). Every mom and pop coding shop from the Himalayas to Kanyakuman has been ringing me up – well, two of them anyway and that is two too many – trying to press their services on me. I had thought that I had seen them off last year.

I object to these calls on so many levels, none of which stems directly from the fact that they emanate from India. One is their grapeshot nature – the fact that the word “litigation” appears on my website seems to warrant picking up the phone to me, without any attempt to determine whether my role is likely to involve outsourcing coding work (it does not). Another is the lack of any attempt by the caller to distinguish his company’s services from the hundreds of others offering similar services; each of them recites some basic litigation support functions as if they had just invented the concept, and if you ask the for something, anything, which makes the caller’s company better than (or even just different from) any other, this is taken as an invitation to start from the top again with the recital of basic functions. I resent the repeated calls – either they are not bothering to record the answer I gave last time or they hope to batter me into submission; perhaps they hope to catch me out in an unguarded moment so that I inadvertently send them a big job. Above all, I reckon that if you are ringing up somebody in England, you should choose someone with a basic grasp of English to make the call. If the salesmen cannot speak English clearly, what might I expect from the technicians if I sent them a job to do?

Jackson Litigation Costs Review consultation ends

A few seconds before midnight on Friday, an e-mail arrived from Abigail Pilkington, the Clerk to the Review of Civil Litigation Costs. It was a bit eerie, really. The East Wing of the Royal Courts of Justice is a cavernous, Gothic place at the best of times, like Hogwarts without the wizards. I got locked into an upper corridor one evening, many years ago (accidentally, I should say, looking for a judge to grant an injunction) and found it a disquieting experience. I pictured Abigail on her own in the gloom, conscientiously sending out acknowledgements to late submissions like mine. Closer inspection showed firstly that the e-mail was an autoreply, and secondly that it had actually been sent within a few moments of me sending my e-mail earlier that day. Perhaps the RCJ needs some wizards to look at it is e-mail system.

The message included a reminder that submissions must also be sent as hard copy. Fortunately (since the 31 July deadline was due to expire 30 seconds later), I had finished my submission with a day in hand and had noticed the requirement to send a hard copy in the nick of time. That took me back a bit – I don’t think I have sent out a hard copy of anything this century. I blew dust off the printer, and found one of those plastic spines which had fortunately survived my recent cull of office equipment which I don’t use any more. After lots of faffing about with envelopes and Sellotape, I set off to find a post office. Gordon Brown’s commitment to public services has included closing many of these essential local services, and our nearest one, some way off, is run with that surly inattentiveness which results from having a monopoly. You can’t drive to it – there is usually a queue, and the traffic wardens are the only competent and efficient representatives of our local authorities here in Oxford. So I waited for a gap in the rain, and walked to the post office, queued by the notices warning of all the services which post offices do not provide any more, had my package weighed, paid for the stamp, and trudged back to my desk.

Once bitten is twice shy – but you may find that things have changed

My experience of trying voice recognition software again after a failed experiment some years ago, has messages for those who have not caught up with developments in litigation support software.

I have come back to voice recognition software after many years of assuming that it was an unwieldy and inaccurate method of transferring words from head to screen. I am immediately hooked and regret all those years spent crouched over a keyboard. Or do I? Is it possible that I have come back to it just at the point where it has reached a level of accuracy which is adequate for my needs, and just when those needs are greatest?

The e-disclosure context here is all those potential users of litigation support applications who dip their toes into the water once and retreat vowing never to try again. Some inadequacy, ranging from an outright system failure which lost their case through to a minor annoyance which became too tiresome to tolerate put them off, often with cries of “I told you so” ringing in their ears.

Well-justified anonymity of Jackson commentator

I am not sure what to make of an article which I have found on a blog criticising aspects of Lord Justice Jackson’s Preliminary Report on litigation costs. I have a general rule that if I do not have something pleasant to say in print, I keep my mouth shut. There are exceptions, of course, whom space does not permit me to list here but, on the whole, I reckon it is possible to comment thoughtfully and helpfully on the litigation support industry without attacking anybody, even if I have, occasionally, to grit my teeth.

I have stumbled upon this blog before, tipped off by one of my Google alerts. It seems competent, workmanlike stuff written by someone who (how shall I put this?) understands more about the technology than he does about the civil litigation context in which it is used. I have no problem with that – he knows much more than I do about file systems and data recovery – but I am put off, just a little, by the fact that the site is anonymous, with no clue as to who the author is or with what authority he writes. He calls himself 585. Do this number hold any clues as to his identity? 585 is (as I’m sure you know) the GeneID of Bardet-Biedl syndrome 4, whose symptoms I will spare you. I very much hope that this is not why he chose 585 as his alias. Perhaps it is his telephone extension.

Getting away from it all

I have never been much good at this holiday lark. I can manage the logistics of travel, and I do not suffer from any illusion that the world’s continuing rotation depends on my being at my desk. I can flit off without a qualm if the destination is a foreign conference, but disappearing voluntarily is a different matter. I blame the Protestant work ethic in which I was brought up, then on being a law firm partner just at the point in the 1980s when we moved from having drinks before lunch to missing lunch altogether, and, finally, on several years of running a business involving software support which really did depend on my being available. What I do now in fact has few geographical constraints thanks to the BlackBerry and the ubiquity of broadband. It is, I begin to realize, no bad thing to give the brain a rest from time to time.

It is never the right time, of course, but the back-to-back conjunction of an unexpected opportunity to borrow a house and two commitments (simultaneously pleasurable and inescapable) took me out for two weeks notwithstanding my backlog. I should have been in Hong Kong, speaking at the LexisNexis e-discovery conference there; they got HHJ Simon Brown QC in my place, which will not have upset them at all. I had to break off a mind-stretching correspondence with a US commentator about the implications of a particular US Opinion which filled the closing moments before I left.  A white paper was part-done when I went away; I took it with me in the vain hope of finishing it off, but it will be the better for having been unopened for a fortnight.

Brief service intermission

You have probably heard enough from me for a bit, and I am pushing off to the country for a few days. My wife is just back from yachting in Croatia, and I see more than enough of aeroplanes and departure lounges during the rest of the year, so England suits us well.

We have been lent a cottage on an estate with a famed garden. Back properly on 23 July.

The information war – news from the front updated

My post Cooperative hands across the sea referred to an article by Jason Baron on Ralph Losey’s e-Discovery Team blog.  Jason’s article attracted some comments, two of which are worth hiving off for comment in their own right. One concerns the “information war” and is covered here. The other is about lawyer education which I will come back to.

Dr Jochen Lardner urges the importance of having the skills to conduct searches in any area of life in an information economy. He refers to “authority/credibility, censorship, technical failure, cybercrime/disinformation/information warfare”. Regular readers will know of my strongly-held view that all of these things, with the possible exception of cybercrime, are areas where UK citizens must do battle daily with their own government, both defensively (it will record everything about you and then lose the data) and offensively (MP’s expenses, ministerial cover-ups).

It now seems likely that the Labour Government will die of weakness and internal corruption before we get to the hanging-from-lamp-posts stage of civil disturbance which seemed a real possibility earlier this year. Nevertheless, we must remain alert to the potential for government misuse (whether by carelessness, incompetence or design) of the mass of private information which is collected about us, and be able to fight fire with fire – the “disinformation/information warfare” to which Dr Lardner refers is a civil war as well as one against foreign powers.

Outsource edisclosure and share the load

The outsourcing of legal functions is suddenly topical as a result of Rio Tinto’s decision to set up an outsourced legal resource in India and Pinsent Masons’ plan to have first pass litigation review done in South Africa – see Do two outsourcing stories in one week presage a trend?

Those who think that this is taking outsourcing too far, as it were, should bear in mind that the principles, the potential savings and the ability to add e-disclosure skills and resources to their litigation armoury are available much closer to home. Furthermore, they need make no upfront investment beyond a little training, and can get started tomorrow.

The first generations of litigation support applications generally required that a law firm purchased the software for in-house use and that they employed staff to administer it. The world has moved on since then, and those tools and resources and are more usually brought on board by having the documents data hosted by a third party, usually the software provider. This has many advantages, not least the fact that someone else incurs the capital outlay and takes responsibility keeping the data available 24/7. The law firm simply gets a bill for the rental of the server space, the provision of the software and any consultancy or data services which are required. The bill can be passed on to the client as a disbursement.

Cooperative hands across the sea

My post about the increasing exchange of ideas between the US and UK on matters of electronic discovery (Preserving the old ways, protecting the new ways) followed a spate of references in US e-discovery commentaries to what is happening in the UK. I observed that “The UK’s apparently quaint approach to disclosure conceals some workmanlike rules which deserve better use and serious consideration by others as well as ourselves”. An English audience may be interested to see some of what is said about us in the US.

The sources referred to below are amongst those to which I pay regular visits anyway, but their common element last week was that they all linked to articles of mine (and therefore turned up on my visitor statistics list). The point of the observation is not so much pride in the quality of my audience as evidence that what happens in the UK is now of interest in the US, which you would not have found a year or so ago.

Preserving the old ways, protecting the new ways

This column, as you may have noticed, is deeply attached to the old principles of discovery of documents as a means of bringing evidence before the court. It is also a determined advocate of new ways of managing it. The US has tended to look on our rules and practice as rather quaint. As the gloss comes off the American way, however, there is a new appreciation of the British approach.

My title comes from a 1968 song by the Kinks. The Village Green Preservation Society included the lines

Preserving the old ways from being abused
Protecting the new ways for me and for you
What more can we do?

The Kinks were past their prime by 1968, with Waterloo Sunset and Sunny Afternoon behind them. It was the year in which Led Zeppelin and Deep Purple were new, and the nostalgia and sentiment of The Village Green Preservation Society were deliberately out of the mainstream, championing old virtues in a style redolent of an older (and perhaps non-existent) past. The previous year’s Summer of Love and flowers in your hair may in truth have been pretty unsophisticated concepts, but they seemed very modern compared with Ray Davies’s plea for “little shops, china cups and virginity”.

US-UK cross-fertilisation for discovery

Vince Neicho, litigation support expert at Allen & Overy in London, has an interesting article in Legal Week about the increasing amount of discussion and shared ideas between those interested in e-discovery / eDisclosure in the US and the UK.

The heading, The same, only different, and the graphic which merges the flags of the two countries, presage the points which Vince makes. There are a mass of differences between the way the courts of the two countries approach the obligations which the parties have to disclose documents. In many ways, the perception amongst UK lawyers and judges that the whole business is just very expensive stems from these outward differences.

What the article does, however, is to emphasise that there are also core similarities, and that these are likely to increase as each side learns more about the rules and practices in the others’ jurisdiction.

Do two outsourcing stories in one week presage a trend?

The decision by Rio Tinto to send some legal work to India comes at the same time as Pinsent Masons announces its plans to send first-pass litigation review work to South Africa. Once you strip out the protectionist reactions of those who do this work now and those who make money from their work, you see the next obvious step towards globalization, and opportunities for those – lawyers and their firms – who ride the wave.

I picture Professor Richard Susskind as having a big wall chart on which he traces the progress of his various predictions over the years. Perhaps they are colour-coded according to the amount of derision they faced as he rolled them out – bright red, for example, for the idea that lawyers might communicate by e-mail or put legal information up on publicly-available web sites. I see him putting a big red tick beside them as the world catches up, or perhaps – since the adoption tends to be incremental – a graph showing the rate of adoption. This would almost always start with a gradually-rising line and then shoot upwards as the herd follows the early-adopters.

Two stories last week will have added to one of his graph lines – the idea that lawyers will distribute some of their work outside the firm to places where it can be done more cheaply. On 19 June, the Times reported (Rio Tinto’s legal switch puts pressure on London) that Rio Tinto has hired a team of lawyers in India to try to reduce its annual £60 million legal bill by 20 per cent, recruiting 12 lawyers in Delhi to work for it on tasks such as reviewing documents and drafting contracts. On 22 June, The Lawyer wrote about Pinsent Masons’ decision to outsource some of its litigation work to South Africa, becoming, the Lawyer said, the first UK firm to offshore the work of qualified lawyers (Pinsents – first firm to offshore work of qualified UK lawyers)

Australia at the centre of the discovery world

The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s);  possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large.

Equivio appeal to corporate IT

Back in March, I wrote about an interview which I had conducted with Warwick Sharp, Vice President of Marketing and Business Development at Equivio (see Podcast summarisises Equivio benefits). A transcript of the interview was first published in Enterprise Technology Management (ETM), Q1 2009. ETM is produced by Informed Market Intelligence (IMI), London.

IMI’s primary audience is described thus:

Information technology has evolved to be the cornerstone of all business activity. Business strategy and technology solutions have become so intertwined that IT is now the driving force behind business success or downfall.

As a result of this convergence, a new type of IT executive has emerged: one who spends the majority of his or her time on business strategy, working hand-in-hand with business colleagues to not only support but actually drive business success.

Today’s global companies need to be strategic thinkers, able to move beyond reactive and even responsive behaviour. They need to be predictive, setting the technology agenda based on their understanding of where business and technology are moving. They need to ensure that all technology investments are driven by business strategy, and that IT is being used to ensure agility and innovation throughout the organization.

My own primary audience is further along the chain, the lawyers and judges who are responsible for handling electronic discovery for litigation, regulatory and related purposes, and the suppliers who serve them. There is, however, a close relationship between the two audiences – it is the corporate IT executives who own and control the data which ends up as the raw material for disclosure. There are two ways in which we can influence the latter to be more strategic and predictive – by anticipating the company’s disclosure requirements in their information management strategies, and by working more closely with the company’s lawyers both to be ready for any disclosure eventuality and when an actual requirement arises.

Sedona Conference dialogue on cross-border discovery in Barcelona

As I have noted elsewhere, I had my own cross-border problems in getting to the Sedona Conference International Programme on Cross-Border eDiscovery, eDisclosure and Data Privacy Conflicts in Barcelona on 10-11 June. I was chairing an edisclosure conference in London the previous day and due in Sydney at the week-end and, in consequence, arrived late in Barcelona and left as soon as the main business ended.

I am spared my usual faithful accounts of the sessions by Sedona’s sensible rule that “what happens at Sedona stays at Sedona”. My mission generally is to get as wide an audience as possible for what is said at conferences, but I am more than happy to submit to the restriction in this context, partly because there is more than enough else to write up and partly because the density of the dialogue (and Sedona is expressly committed to dialogue rather than debate) is such that you would need a book to do justice to its proceedings.

It seems sensible instead to juxtapose some stereotypes against the reality in an attempt to show those new to the subject what the broad picture is. This matters because cross-border issues inevitably involve cross-cultural matters as well as conflicts of laws. The best and most topical summary of the issues is Working Document 1/2009 on pre-trial discovery for cross border civil litigation prepared by a Working Party set up under Article 29 of EU Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. Its introduction recites the problem thus:

Ark Group e-Disclosure Conference 2009

You can generate a lot of notes in six conference days in three countries in nine days and have little time to transcribe them. I am quite good at actually recording what people say, less so at the small but telling details like headings and page-numbering. I can generally rely on my memory to fill the gaps in my notes (and the bits I cannot read) but that is a tall order when information has rolled at me continuously for days like infantry at the Somme. Ark Group’s e-disclosure conference of the beginning of last week seems a distant memory on a cold, wet dawn in Sydney ten days later when I started writing it all up, still more in the dark aeroplane cabin surrounded by snoring travellers on the way home when I finished it off. There was lots of good stuff said at the conference, but I doubt you would read a verbatim account even if I could set it down. What follows is a summary.

The chairman on Day 1 was Lee Gluyas of DLA Piper UK LLP who, as in previous years, was well up to the challenge of keeping speakers to time. Lee’s opening comments identified a positive shift over the time he had been filling this role, a greater awareness of the issues and the need to grapple with them.

Jackson conference challenge to litigation support providers

Lord Justice Jackson laid down a challenge to litigation support providers at the Ark Group e-Disclosure 2009 conference in London last week. They must, he said, find a way to bring down the cost of e-disclosure; if they cannot, then the basis of disclosure will have to be changed. Other jurisdictions provide a disputes forum which does not require the parties to undertake the vast exercises which are needed for compliance with the existing disclosure regime. The implication was that the old and treasured principle that all the evidence must be rigorously examined is threatened by the brute fact that the cost of conducting that examination is too high.

There is much more to say about this than can be fitted into an account of a two day conference, so I will settle for a bullet point summary of the other elements which contribute more to the costs than most suppliers do:

Remember to seek disclosure of telephone recordings

A “document” is defined in Rule 31.4 CPR as “anything on which information of any kind is recorded”. Lawyers brought up in the days of paper disclosure, even those who have adjusted to electronic versions of those paper documents such as the source Word file, may overlook other things “on which information of any kind is recorded”.

At the top of the list comes recordings of telephone conversations. These days, our most mundane calls are preceded by a message warning us that our call may be recorded “for training purposes”. If that was indeed its only purpose, then the warning is little more than aural clutter to make us hate the company even more than we do already – most of us come across these messages when dealing with our ISP, utilities provider or similar organisation whose institutional incompetence extends to the erection of barriers against the customer. The added delay whilst some Estuary-accented trollop warns you about recordings certainly succeeds in putting me off making any call which is not vital, as is doubtless intended.

Graphical display of thesaurus terms

The graphical display of discovery / disclosure information has been one of the most interesting developments in software designed for search of all kinds. It is specifically so for litigation document review purposes and, perhaps even more so, for early case assessments when you are trying to find out just what the scope is of your document universe.

One of the distinguishing features of such a task is that the searcher often has no real idea of what the search will turn up. In most areas of research, you have a broad idea of the parameters of the hunt – I have been looking up flights and hotels recently, for example, and had the advantage of knowing that I was after a particular kind of information (a hotel, say) in a particular place (or places, given the particularly daft schedule which faces me over the next few days). Ranging shots in Google brought me to specialised databases which had fields to search in which corresponded with obvious inputs – dates, room-type, number of nights and so on – which are standard across most such resources.

Litigation is often not like that. You will, of course, have got from your clients some clues – names, date ranges, commonly-used words and so on – but whilst they may narrow the field, they are not conclusive as to what you might turn up, not least because you (if you are a lawyer) are an officer of the court as well as the client’s gladiator, and it is your practising certificate and insurance policy which is on the line.

Parallel and cross-border developments in eDiscovery

I have just had to turn down the opportunity to speak at a conference organised by LexisNexis in Hong Kong on 20 and 21 July. The invitation was to deliver the keynote speech at the start of the first day with the heading  Globalisation and Digitisation: the Rising Need for Digital Forensics and E-Discovery in Today’s World, which I would have been extremely happy to do.

My Mother’s 80th birthday party is on the previous day and my eldest son’s graduation ceremony is in Leeds on the day following. I could, with a fair wind, have made it to Leeds with two hours to spare by racing at dawn from Heathrow to Gatwick. I have done worse things – my breakfast-in-Sydney-dinner-in-Washington trip last October didn’t allow even time for an espresso between terminals at LA and, as I recounted last week, I made it from Orlando to IQPC in London just as the conference opened. I am game for that sort of thing, but not for missing my Mother’s birthday.

Ian Manning now at Raposa Consulting

As regular readers will know, Ian Manning was the initial sponsor of the e-Disclosure Information Project, providing continued support despite his never-ending overseas travel commitments for FoxData Ltd.   Ian’s extensive experience in forensic collections for commercial litigation and regulatory enquiries has provided valuable market intelligence to the Project as well as many e-disclosure anecdotes which have served as the basis for after-dinner conversations.

The point of all this is to explain to those familiar with my web site and blog the changes you will no doubt notice on it.  Ian’s management association with FoxData Ltd ceased at the end of March 2009.  However, as I hoped, Ian is keen to continue his personal support for the e-Disclosure Information Project.  This support will come via his company Raposa Consulting Ltd.

To find out more about Raposa Consulting go to www.raposadata.com

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Everything and everyone at the IQPC Information Retention and E-Discovery Management Conference

I reached IQPC’s Information Retention and E-Discovery Management  Conference 2009 just as the first speaker stood up on Wednesday morning, feeling rather like Phileas Fogg as he burst into the Reform Club with seconds to spare. Although I had not been round the world in 80 days, it felt like it after the 4336 miles overnight from Orlando (see posts here and here as to why I was in Orlando). At least it was warm and sunny in London, unlike damp, dank Florida.

The IQPC e-discovery conference is one of the best in the London calendar, as much for the people one meets there as for the content. At my first, two years ago, I was introduced to three people on one day who have directly contributed to what I do now. Victor Limongelli, now CEO of Guidance Software, gave the first talk I had heard which drew attention to the similarities and differences between US and UK procedure and practice. Master Whitaker spoke rather pessimistically about the difficulties of persuading judges and practitioners that the proper court management of electronic documents was vital to control litigation costs. Mark Surguy of Pinsent Masons talked about the need for lawyers to understand technology and to get to know some providers of software and services who could help them.

An old-fashioned huddle colloquium

My title comes from what appears to be an automatic translation of one of my recent articles which I came across on a site called 123people. What it has been translated into and by whom remains a mystery. My son Charlie Dale found it because it references him. It is called The untapped premature of YouTube as a promotional method and should be read alongside the source article The untapped potential of YouTube as a promotional medium.

The first paragraph turns this:

Lord Justice Jackson will do his launch tomorrow with an old-fashioned press conference.

…into this:

Lord Justice Jackson determination do his get going tomorrow with an old-fashioned huddle colloquium.

I will capture it all and post it somewhere where it won’t be confused with my own actual prose. I never thought of describing what I do as a means of bringing psyche to the commonplace words of the rules and the fresh judgments in Digicel, Abela and Hedrich. Why did the Phoenix Fall not think of launching their song What exceedingly matters to me at evensong? The description of Gordon Brown as the least telegenic partisan concert-master is pure genius.

I leave you with this:

The e-disclosure interplay is delicate, to communicate the least, but marketing ideas eddy for all that….There is wastefulness of elbow-room here to be inventive in decision ways to spread issue, partisan and other messages and to seize unexpected audiences.

Any of you thinking of using automated translation tools may care to get some samples before you start.

Enjoy.

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More than just ediscovery panels at CEIC 2009

I have already written (Describing the e-discovery elephant) about the two e-discovery panels which I took part in at CEIC 2009. The panels were only one of the reasons why I came here. There was another formal reason and countless informal ones.

The other formal reason was a meeting of Guidance Software’s Strategic Advisory Board which brought together a small group of people from different parts of the e-discovery field  – two General Counsel responsible for electronic discovery in large corporations, two well-known private-practice lawyers specialising in e-discovery, and two industry experts from other jurisdictions – who sat down with senior executives from different areas of the company’s activities. The traffic passes both ways at these things – the company gets input from those outside it and the invited members learn more about what the company is doing and what it plans to do.  Discussion ranges beyond the company and into the wider industry, with the combination of the occasion and the assembled company taking us down ways not envisaged in the agenda.

Describing the ediscovery elephant

It is pouring with rain here in Orlando. Every so often, a flash of lightning illuminates the large plastic elephants which stand in the pool beside me. Even the most assiduous English official, never stuck for something to put up a notice about, could not come up with a sign reading “Rocks frighten the elephants. Please do not throw rocks”.

The Loews Royal Pacific Resort at Universal is, as its name implies, a holiday destination as well as a conference centre and you have to choose your bar with care. The one we sat in as we finalised our presentations lies between the pool and the bedrooms, and a stream of near-naked beauties dripped their way past us. If that sounds distracting, it is much better than being approached by Shrek and Princess Fiona, who occupy one of the other bars. We don’t get this sort of thing at London conferences.

I am here for CEIC 2009. The Computer and Enterprise Investigations Conference is run annually by Guidance Software to bring a mixture of technical, legal and business events together for people from corporations, law enforcement and other areas with an interest in data preservation, identification and capture. There are about 800 people here, nearly as many as last year. There are not many conferences which can claim that in 2009. Here you can do anything from polishing up your EnCase certification at one extreme to listening to e-discovery seminars at the other. The East Coast location makes it easier for those from Europe, but does not, alas, guarantee the weather.

Compliance with the demands of an e-disclosure diary

I don’t think I envisaged a peaceful life when I decided to commit all my time to promoting electronic disclosure, but I am not sure either that I foresaw this much activity compressed into a short space. It is just as well that I enjoy it. My original policy never to say no to anything which will get an audience for the subject has had to be modified a bit – double-bookings are difficult, for one thing. Every event involves preparing slides and notes, not just turning up on the day, and the everyday stuff – researching and writing – goes by the board when there is always something happening or about to happen. I would not want it any other way but it would be good to have it better spaced. A summary will have to suffice for now, and the summer promises time to catch up.

Something for everyone in the Jackson litigation costs report

Lord Justice Jackson’s interim report on civil litigation costs weighed in at 650 pages, not the 1,000 pages which rumour anticipated. It is as well that I am commentator not a newshound journalist, because I missed the big day and was on-air myself at a rather more nuts-and-bolts level (giving a live e-Disclosure broadcast) as Sir Rupert Jackson was being interviewed by the BBC on the more momentous subject-matter of his report.

That there was something for everyone in the report is evidenced by the range of things which others picked up on in reporting the launch. LegalWeek headed its report Jackson to review complex commercial disputes and picked up on Sir Rupert’s expressed determination to cover complex multi-party disputes as well as cases in lower courts. It quoted him as saying “I have come to the conclusion that the Commercial Court is not a sacred territory, which falls outside the terms of reference set for me by the Master of the Rolls……The recommendations in my final report must encompass all civil courts, including the Commercial Court.”

The untapped potential of YouTube as a promotional medium

You can launch political policies, bands and brands on YouTube, but perhaps not 1,000 page interim reports on litigation costs. Lord Justice Jackson will do his launch tomorrow with an old-fashioned press conference. Other things, however, bring the marketing and educational value of video to mind.

Lord Justice Jackson’s initial report on the reform of civil litigation costs is due to be launched at a press conference tomorrow, 8 May. There is an article in Times Online today by Neil Rose headed What will the Jackson report say? which summarises some of the things we might expect to see from what is rumoured to be 1,000 pages long – and that is just the interim report.

The article’s most important point comes at the end – this not a government-commissioned report. It was the Master of the Rolls, Sir Anthony Clarke, who asked Sir Rupert Jackson to undertake what was always going to be a vast and important task. The role of judges is central to any planned reforms and, one hopes, something which is immune from political pressures.

I will not be there, unfortunately. I long ago agreed to do an e-disclosure live video presentation for CLT Onlne which goes out at 1.00 tomorrow.  The bare reference in my slides to the Jackson Litigation Costs Review will be outdated by the time I get to it.

Richard Susskind webcast on the End of Lawyers?

Professor Richard Susskind caused a stir at the ABA TechShow in Chicago in April with his thoughts on the way the future looks for the legal profession. The context was the launch of his latest book, The End of Lawyers?, that comforting question mark flagging the possibility that the profession may survive in some form if it adapts.

I wrote about Susskind’s book when parts of it were trailed in the Times (see Richard Susskind and the End of Lawyers) and I will not repeat what I said there about the potential for change in the litigation support market. Nor will I attempt an overview of Susskind’s wider propositions, which are readily available elsewhere.

I have been listening to a webcast of a discussion between Richard Susskind and Mark Harding, Group General Counsel of Barclays, and focusing on a couple of points which seem to me to both imminent as opposed to speculative (although Susskind’s speculations tend to become the norm rather quickly), and relevant to the management of litigation and other areas which involve the handling of electronic documents. Litigation is the one area which (as I noted in my earlier article) has defied Susskind’s original predictions because (he told me when I asked him three years ago) the clients had not put pressure on the lawyers to adopt technology.

Guidance Software survey for IQPC

The Information Retention and e-Disclosure Conference run by IQPC is usually one of the best in the calendar, with a better-than-usual mix of corporate users and information professionals. It take place this year on 20 and 21 May at Le Meridien in Piccadilly. As usual, Day 1 is concerned with information management and Day 2 with litigation and regulatory matters.

I have several levels of interest in this conference. I am on its Advisory Board and have been involved in much of the planning. I am doing two judicial sessions on Day 2, of which I will say more shortly. Several of the sponsors of the e-Disclosure Information Project are taking part, including Guidance Software, FTI Technology, Epiq Systems, Autonomy and Legal Inc.

E-Disclosure in the £50,000 case

The article to which I am about to refer you is in fact called E-Discovery in the $50,000 Case by Conrad Jacoby and not as my heading shows it. We in the UK renamed the ancient process known as discovery of documents ten years ago and called it disclosure, as part of the frankly stupid idea that if you give something a trendy new name you somehow make it better. Sterling is now so debased as against the Dollar that the difference between 50,000 of the one and 50,000 of the other does not matter much in the context of which Jacoby writes.

How can you handle electronic documents cost-effectively in cases whose value is disproportionate to the work involved in strict compliance with the rules of discovery / disclosure? Many in the UK blame the advocates of litigation support technology, as if we are somehow responsible for creating all this stuff. It exists. It has to be dealt with if you are to comply with the rules. Pretending that your clients and their opponents do not have electronic documents has two outcomes – breach of professional duty, and unexpected costs down the line. Better, surely, to square up to the facts and develop a strategy to handle the documents efficiently.

Autonomy audio processing for law firms

Autonomy has wasted little time in extending its search technology into the iManage products which came to it with the acquisition of Interwoven. It has announced an audio processing capability for what is now called Autonomy iManage WorkSite.

The business rationale lies in the growing amount of audio which law firms now have. Voice-mails, recorded depositions, in-house educational materials, and a wide range of other sources are now routinely recorded and kept. The need to search them is no less than the need to hunt down documents in more conventional forms – and it is a measure of how far we have come that we now consider Word files, spreadsheets and other electronic files as “conventional”.

Keyword searching for e-disclosure documents is not like using Google

There is no one-size-fits-all answer when deciding what keywords (and what else apart from keywords) to use to arrive at the “right” set of documents for disclosure. You have to educate yourself to know what the court expects. There is more to it than finding Paris Hilton with Google.

It comes as a surprise to many that the UK Civil Procedure Rules include a reference to anything so sophisticated as keyword searches. Paragraph 2A.5 of the Practice Direction to Part 31 CPR says this:

It may be reasonable to search some or all of the parties’ electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.

We were discussing this paragraph last night at a meeting of Master Whitaker’s drafting group, in the context of the proposed new e-Disclosure Practice Direction. The point at issue (or one of the points from a meeting lasting four and a half hours) was the need to sanction – indeed, to require in an appropriate case – the use of technology, whilst not implying that technology is all you need.   One issue is that the use of keywords is only one of the many technology solutions which may be applied to the task of finding the “right” set of documents – “right” being a neutral term which I use deliberately here (as we cannot do in the rules) to connote compliance with the definition of a disclosable document in a way which is proportionate.  Our wording must cover developments in search technology which are as yet unknown. Another issue is that technology alone, however sophisticated, is rarely, if ever, enough. You need a brain and the instructions for using it in this context.

LexisNexis debate marks ten years of the CPR

LexisNexis, publishers of the Civil Court Practice 2009 “The Green Book” marked the tenth anniversary of the Civil Procedure Rules with a debate chaired by Lord Neuberger which considered the impact of the CPR and assessed its strengths and weaknesses.

The panel members were:

* Sir Anthony Clarke, Master of the Rolls
* Simon Davis – Clifford Chance
* District Judge Michael Walker
* Professor Michael Zander QC – London School of Economics

The debate was recorded on video and can be found on the LexisNexis web site. It comes in convenient chunks – two sets of short excerpts, some highlights, and the full version (for which user details are required). I have so far watched only the highlights but will certainly go back to the full version.

Dropping in to Oxford, dropping out to Paris

The printed description of a software application’s capabilities is no substitute for interaction with the people who are selling it, just as the bare record of historical narrative without people does little to bring a subject alive. People buy from people, not companies, and that means getting out and about. It is not a contradiction to say that a disparate group of people or businesses can best become a cohesive selling proposition by using a web site.

We may look back on the first few years of this century as a short period when international inter-personal communication was at its best. We can cross the world more efficiently and more cheaply than at any time in history, but electronic virtual communication is also extremely sophisticated. From now on, I suspect, we will see physical travel move further out of reach and electronic connections become so advanced that it will be hard to justify actually going to meet the people you do business with. We will lose something as a result – a personal element in business which is valuable.

The thought was prompted by a conjunction of flying visits. Jo Sherman was with us at the weekend. Jo is the founder and CEO of eDiscovery Tools, an Australian software company which specialises in electronic data discovery for litigation and similar purposes. It is quite a feat for a relatively small Australian company to sell software to major UK and US clients. The secret lies in personal relationships which may make use of electronic communication to some extent but which must be kept warm with face-to-face meetings. Her apparent ubiquity – this is the third time I have seen her this year, here or in New York – must be hard work, but it seems to generate business. Looking at other suppliers, I wonder sometimes if the slashing of travel budgets in this industry is being done for the right reasons – a lot of it seems to me to be more a matter of creating a perception of frugality than part of a coherent plan. Marketing people seem to think that their carefully-drafted prose will do the trick on its own. People buy from people, not flyers and brochures.

Anacomp gets unqualified SAS 70 Type II security certification

Anacomp, which owns the litigation review platform CaseLogistix, has received a full unqualified SAS Type II certification for its hosting and operations centre at Herndon, Virginia. SAS 70 is an auditing standard established by the American Institute of Certified Public Accountants which allows service organizations to demonstrate they have adequate controls and processes.

You can read the press release to get the details. I do not, on the whole, concern myself with the infrastructure aspects. This is not because they are unimportant – far from it – but because my focus is on the user end, the business and legal context in which an application is used, and on the people who develop and sell it and who support the users.

All the news that’s fit to print from Unfiltered Orange

The source for my story about the US – Swiss Safe Harbor was Unfiltered Orange, the electronic discovery resource run by Rob Robinson for Orange Legal Technologies.

Rob’s then e-discovery blog was the first resource I came across when I began to inform myself about US legal and technical e-discovery developments. We have never met, though we must have been simultaneously in the same place at events like LegalTech, but have corresponded over the years.

The resources available from the Unfiltered Orange page include a weekly update e-mail, Twitter and FaceBook. The update covers the Top 25 eDiscovery stories, and if he happens this week to have put one of mine at the top of his list (Distinguishing workplace spying from data collection), that serves merely as a prompt to do something  I have been meaning to do for some time, and point you towards his site.

Identifying, culling and filtering the world’s e-discovery stories is similar in many ways to the exercises which they describe – there are a lot of them and not all are worth looking for or looking at. I have the luxury of choosing only those which interest me personally. Rob Robinson’s self-imposed brief is rather wider and I am, as always, grateful for the pointers he gives to the stories which matter.

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Informed comment in the Times adds to the Woolf rules debate

No sooner had I published my post Have the Woolf reforms worked? yesterday when Jonathan Maas flicked me a link to an article in Times Online on the same subject. It is called Sad and unsatisfactory – but not destroyed and is written in his personal capacity by His Honour Judge Charles Harris QC, the Designated Civil Judge for Oxford. Like me, Judge Harris was reacting to an article in the Times of 9 April by Lawrence West QC.

Judge Harris is chairman of the civil committee of the Council of Circuit Judges. I came across him when he was the able convenor at a kind of judicial boot camp last Summer. HHJ Simon Brown QC and I were invited to speak there about electronic disclosure to an audience which included the Master of the Rolls.

The focus in Judge Harris’s article is on the greatly increased complexity seen in the last decade, much of it not merely unnecessary but counter-productive. We have not only seen a great deal of new law, but statute draftsmen seem to have lost the ability to write succinct unambiguous law. The CPR and their Practice Directions have grown in volume (that is, pages), in detail, in prolixity and in their implications for practitioners. The remedy, Judge Harris says, is “greater simplicity, with less prescription and preparatory paperwork”.

Not going to Canada for the second time this month

As you may recall, I was not able to go to a meeting in Toronto at the beginning of April, when Senior Master Whitaker and I had hoped to see Justice Campbell and others to talk about common ground between Canada and the UK on the case management of civil litigation. I am also not going to Montreal next week for the LegalIT 3.0 conference  on 20 and 21 April for the prosaic reason that I have only just found out about it.

Jo Sherman of eDiscovery Tools and the Australian Future Courts Programme is coming here at the week-end so that we can talk about the new Australian Federal Practice Note 17 on the use of technology in the management of discovery and the conduct of litigation which she masterminded and which is relevant to our planned Technology Questionnaire and e-Disclosure Practice Direction. She mentioned that she was en route to a panel presentation in Montreal – the first I had heard of it.

Keeping informed on information about informaton

It is getting hard to keep up. The various aspects of information and justice which I write about are developing faster than I can put quill to keyboard.

I wrote my piece An information war at the week-end and updated it when the video emerged of the policeman beating up a woman at the G20 demonstration before posting it today. This morning’s Times carries a piece to the same effect as my article’s comments about protesters turning the tables on Big Brother state, using information as their weapon. There is also an article in the Times today about policemen invoking the Terrorism Act against a man who photographed them in a park (they have been given some re-education on the subject), one about the Damian Green raid (an over-reaction, apparently, according to the Parliamentary Report of yesterday – you don’t say?), and one about the further fall-out from the Damian McBride affair, with questions being asked about searching e-mails to trace the other recipients of the offending messages. Meanwhile, the European Commission has started legal proceedings against the UK for breach of its obligations to enforce EU data privacy laws.

Pretty well every topic I wrote about has therefore been updated by events. Meanwhile, I have seen a headline about Switzerland signing up to safe harbor, a judge has written in the Times today (as I have here) about the Woolf reforms, and there is a Legal IT conference coming up in Montreal which deserves a write-up. Oh, and there is some work to do as well as all this writing.

Some, at least, of all this will warrant further comment. Mr Justice Jackson, as he then was, referred to the issues in the Wembley Stadium case as being like the Lernean Hydra. That, as I am sure you all know, was a hideous creature which would emerge from its murky swamps and terrorise the people. Every time Hercules struck off a head, two more would grow in its place, so the Hydra was a bit like our civil service (and the murky swamps increasingly a metaphor for Downing Street, come to think of it). As I look at all these multiplying stories around the world which warrant reporting, the Hydra analogy comes to mind. I will try to keep up.

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Confounding the expectations of a cynical audience

Susan Boyle, the unlikely-looking star of Britain’s Got Talent, reminds us that first impressions may mislead. You do not know how good something can be unless you see – or, in this case, hear – it. Your cynicism as to e-disclosure, like the judges’ expectations of Miss Boyle, may be founded on some wrong assumptions

It is nearly impossible to sell me something which I did not intend to buy anyway. I am almost immune to impulse buying and am brusque to the point of rudeness with anyone who tries to interest me in something which I did not already have a fixed intention to buy. This, I am told, makes me embarrassing company in New York shops where they simply cannot leave you alone – my son saw one assistant making frantic gestures to head off another who was about to bend my ear with his unsolicited drivel because she had just witnessed me biting the head off the last one who interrupted my train of thought. I hang up on cold-callers who do not deliver a compelling message in ten seconds (sorry all you Indian scanning and coding salesmen) and try and avoid going into my bank now that every cashier is on commission if they manage to sell me something.

This attitude dates from the time when I was IT partner at a large firm of solicitors. Every bloody salesman in London would ring me up just to see if I had changed my mind since the last time I told him to sod off. I know what you are selling, I would say, and as and when I want something like it, I know where to find you. That is not bad training for being on the other side of the fence, where my role now is try and persuade lawyers at least to take a look at the sort of things which litigation applications can do. Lawyers are cynical about attempts to impress them; they think they know what to expect from a demonstration; they are pretty sure that they are not interested and that they will not be made any more so when the salesman opens his mouth.

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

It is very good to welcome FTI Technology as a sponsor of the e-Disclosure Information Project. FTI Technology is a segment of FTI Consulting, Inc., a global business advisory firm, and brings immense resources to bear on the acquisitions and the software development needed to produce a world-class platform for disclosure / discovery.

As usual, I see no point in copy-typing or edit-pasting the perfectly good prose of a well-written press release, and refer you to FTI’s announcement of 27 January 2009 which sets out succinctly what FTI have done with their two flagship electronic discovery acquisitions Attenex and Ringtail Legal. Put shortly, they have integrated the advanced analysis, clustering, rapid review and graphical visualisation strengths of Attenex and the review, redaction and production capabilities of Ringtail.

In layman’s terms (since, as I say, you can read the formal descriptions for yourself) Attenex ploughs through large (very large if that is what you have) data collections, and helps identify material you either want to discard or to review, serving it up in batches. The clustering and visualisation tools allow quick overviews in a form which allows the reviewer to drill down to document level if necessary and to make decisions which both carry through into the detailed review stage and inform decisions about subsequent batches of documents. Ringtail Legal allows you move straight on to the detailed review without having to move the data between applications.

KordaMentha picks EnCase from Guidance Software for Australian eDiscovery

Like sport and so much else, the idea of proving a legal case by discovery of documents is an old English concept which was adopted wherever the English had a hand in establishing a system of law. America kept it when it dumped our tea, our taxes and our King. Australia adopted it with the same enthusiasm as it adopted cricket. A couple of weeks ago, Hong Kong was host to both the Rugby Sevens and our Senior Master Whitaker talking about UK disclosure developments. Discovery is central to Canadian litigation, and Master Whitaker is due to speak about it in Singapore later in the year.

Three things unite all these countries apart from their common law heritage. The problems raised by electronic disclosure are the same everywhere; those of us involved in developing rules and best practices around the world all speak to each other; and there is a handful of suppliers whose applications are used wherever electronic data must be collected and handled for litigation or for regulatory investigation. The resulting cross-fertilisation has obvious benefits – what works in one place will probably work in another, and if an approach tried in one country is seen to have failed, then it is as well to know about it before another jurisdiction goes down the same track. The things I talk about in Birmingham or Bristol are informed by what I Iearn in Sydney or New York, and it would perhaps surprise UK judges and lawyers to know how much interest there is in those places in what happens in the UK.

Electronic Working Pilot Scheme

I have not had the chance to read it yet, but Practice Direction (Electronic Working Pilot Scheme) supplementing rule 5.5 of the Civil Procedure Rules 1998 provides for a pilot scheme by which, in the circumstances set out in the practice direction, proceedings may be started and all subsequent steps may be taken electronically (“Electronic Working”).

The pilot runs from 1 April to 31 March 2010, applies to claims started on or after 1st April 2009, and will operate in the Admiralty, Commercial and London Mercantile Courts of the High Court at the Royal Courts of Justice, with the possibility of extending the operation of the pilot scheme to other courts.

This looks one of the more interesting developments since the CPR was launched, when the electronic filing functions now being piloted were (or so it seemed) muddled in the official mind with the very different concept of electronic disclosure of documents between parties under Part 31 CPR.

More when I have had the chnace to read it properly.

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NERDI and ClearGuideAutoKrolLexFTios

The e-discovery 2.0 blog scored an exclusive with a recent post. Under the heading Government Launches Bold New Recovery Effort, it reported the nationalisation of the US electronic discovery industry. A new authority, the National Electronic Discovery Institute (NERDI) was apparently set up with a new portal at EDiscovery.gov with effect from 1 April. In response, the Socha-Gelbmann Top 5 has consolidated under the name ClearGuideAutoKrolLexFTios.

It is faintly disturbing that this could easily be read from top to bottom without a blink. Tom Lehrer famously said that the award of the Nobel Peace Prize to Henry Kissinger made satire obsolete.  How can a mere spoof compete with the daily news at the moment? How about “Home Secretary claims 88p bath plug and her family’s porn viewing from taxpayer”? That particular (true) item is rivalled only by one yet more risible from a while back: “Brown appoints Jacquie Smith as Home Secretary”.  How funny is that? (not very, actually, if you value liberty, privacy and the right to sleep soundly at night, but that is for another article).

Discovering inspiration from heroes of the past

My primary topic, electronic discovery or electronic disclosure, is a sub-set of a wider subject – more than one wider subject, indeed. It is important as a matter of simple business efficiency; it is critical to the subject of access to justice, which matters as much to large corporations as it does to ordinary individuals; and it is fascinating (to me anyway) as an example of technology being applied to move the world on. It is not the pure science – my Grade 9 in Physics with Chemistry O Level was well-deserved – but the conjunction of human endeavour and technology being applied to practical problems which interests me. I may describe some of the e-disclosure applications as “near-magical in their capabilities”, but I stress also that the most important technology lies between your ears.

I have had a couple of days away. If what you come here for is undiluted e-disclosure then you will have to wait – there are posts coming up on subjects as narrow and varied as TREC and search technology, on privacy and German works councils, on Special Masters and on other e-discovery topics. Today concerns wider matters, although the theme – that you can do almost anything if you really want to and have the tools to do it – applies as much to managing litigation as it did to the esoteric examples which have come my way in the past few days.