An eDiscovery, social media and libertarian miscellany

I am in Hong Kong, cursing that I left behind the USB thingie required by my wireless headset so that I must type everything by hand. I am here for InnoXcell’s Asia eDiscovery 2012 Exchange, and specifically for panels on social media and on the convergence of eDiscovery and information governance. This is an odds-and-ends post, a collection of loose ends of the type which gather when you flit from place to place and subject to subject, as I have been doing lately, including a bit about my own experiments with social media, some reflections on liberty derived from what I am reading and from the Jubilee – oh, and a little about eDiscovery.

Recent Google Plus posts and the breadth of the subject-matter

The variety of topics encompassed by the broad heading “eDiscovery” appears from recent posts here on my blog and on Google Plus. The most recent blog posts cover costs management, early data assessment, metrics, social media, predictive coding, the duty of competence in eDiscovery, and US extradition demands, amongst other things. The range of related subjects does not end there: my Google Plus posts have the following headings:

Inside Counsel: Three companies talk about their social media governance policies

Successful Claimant loses costs in excess of budget: Henry v News Group Newspapers Ltd

The effect of Google’s Search Plus Your World on Facebook Traffic – or not

eDiscovery Institute Announces Second Annual Leadership Summit – October 17-19

Dominic Regan takes the MoJ to task over plans for an employer’s liability portal

InnoXcell Hong Kong: The convergence of eDiscovery and information governance

InnoXcell Webinar: The Social Media Governance Imperative

Some views of and from the Red Rock and a few panel pictures

Rob Robinson’s rolling update of the Da Silva Moore court documents

In between, there have been a couple of webinars, a paper or two, a three-hour UK eDisclosure seminar and planning calls for conferences yet to come. There has, in addition, been rather too much opportunity to observe that the poor project management skills shown in many eDiscovery exercises are as nothing compared with the incompetence, indolence, stupidity and sheer contempt for others shown by the sort of people who manage public transport, immigration queues and airport processes. Hong Kong provides an honourable exception under all these headings.

Traps for the unwary – the cross-over between social media and eDisclosure

Social media and electronic disclosure are two important subjects which many companies and their lawyers would rather ignore – their very names are enough to strike apathy into many hearts. eDisclosure provider CY4OR has joined forces with others to promote awareness about these two subjects, which can often become inter-related, and at short notice.

Some subjects do not get the attention they deserve, their very names causing lawyers and their clients to change the subject. In any context, the labels can have an alienating effect or can conceal what is really meant. A former director of the Imperial War Museum once said that he had to sell the hardest three words in the world, though he went on to achieve just that.  Twenty or more years ago, British railway companies, as uselessly incompetent then as now, decided that calling their passengers “customers” would stand substitute for any improvement in the service. The UK Civil Procedure rule-makers decided in 1999 that relabelling “discovery” and calling it “disclosure” would somehow make the process better.

Labels can arouse derision (“politician”), fear (“hoody”), contempt (“chav”) and so on, encouraging the suspension of thought as to what is embraced by these terms.

Sometimes, labels simply become affixed to a subject or category without direction or decision, in the way that “social media” has stuck to a range of mechanisms which allow people to communicate. Like the smooth green surfaces on Dartmoor which conceal deep quagmires, they are traps for the unwary.

Should Corporate Counsel Use Social Media? Serious Entertainment at the Corporate Counsel Forum Europe

The most enjoyable session at the Legal Week Corporate Counsel Forum Europe at Luton Hoo last week had the title Should Corporate Counsel Use Social Media? – Lessons Learnt and Opportunities Found. It came between the information management session in which I took part and a panel discussion moderated by Julia Chain of Huron Legal called Post-Crisis Era: Threats and Opportunities, whose opening references to double-dip recession set its tone. Social media may have seemed light relief in between these topics. That does not diminish its importance nor the serious impact, for good and bad, which its use may have on a company.

The session was a solo performance by Tim Bratton, in-house counsel at the FT, known to me hitherto only on Twitter as @legalbrat and from thelegalbratblawg. By “solo” I mean that Tim was the only person on the platform (and by “performance” I mean just that, a lively alternative to the stand-at-a-podium approach). Part of the point of his presentation was to show how he uses Twitter as a multi-way communications medium. Tweets sent live from the stage elicited replies from a number of lawyers and others, showing how one can exchange ideas, throw out questions and generally keep in touch with a range of people who have interests in common with you. Linda Cheung of CubeSocial has collected some of the resulting tweets in an article called How and why Lawyers use Twitter.

There was, Tim said, a serious marketing point amongst other motives – the FT is an information company which sells content; Twitter, blogs, FaceBook and other forms of social media are a way of reaching and engaging with new audiences. One of the points made in the earlier session about the role of general counsel was that those in one industry can benefit by sharing ideas with their equivalents in other industries – Richard Susskind predicted some time ago that this horizontal exchange of ideas was a potential threat to external lawyers who had hitherto been a company’s only source of legal information and ideas. Susskind’s point was to encourage external lawyers to take part in the conversation or risk being bypassed. Tim Bratton showed us how it was done.

PissOffPRs 1.0 and PissedBot 2.0 – essential tools for everyone in Legal IT

The vintage legal blogger and tweeter, Charon QC [“veteran” surely? Ed] features on every list of legal commentators worth following. His 81,000 or so tweets encompass everything from what he had for breakfast, through television reviews and political comment, to (which is what really matters) focused and timely commentary on the big legal issues, driven by a very strong sense of the supremacy of the law, a feeling for what is right, and a sharp eye and pen for the follies of mankind.

One of his recent tweets offered a rebuke to a public relations person who had sent him not one, but two, copies of a press release, apparently in the hope that he would promote some product. As with most other areas of business life, legal technology PR contains a few who are absolutely excellent and those, too many to mention, whose continued existence in this market is a source of constant amazement. Too many of them have no idea what they are trying to promote, no idea about the market, and no idea about relating to people, and they were clearly in another room when the basics of grammar and spelling were taught at school.

Down at the bottom of my list are those who, knowing that I have some interest in legal technology but having no idea which bit of it I focus on, send me everything – billing and time-recording are obviously my favourites. I once got an e-mail clearly intended for Charles Christian – my e-mail address but the heading included Charles’s name or, at least, a recognisable variant on the spelling of Charles’s name. I was once sent, presumably in error, a spreadsheet of all the intended recipients of legal technology mailshots, complete with (in some cases) a commentary about them. My own entry was sadly lacking in detail, but I would like to think that it would read something like:

Grouchy, picky, does not suffer fools gladly, intolerant of material which is either irrelevant or likely to alienate any recipient. Has world-wide audience, does not hesitate to use it, and is likely to be read by the clients. Catch him on the right day with a topic of interest to his readers and he will do his best to make it interesting. Handle with care.

Anyway, Charon QC’s tweet said that he had sent the offending public relations person a bill for his time spent on reading the unsolicited press release. Presumably the fee doubled because he had been sent two copies of it.

Metropolitan Corporate Counsel interviews Equivio on Processing and Proskauer on Compliance

The only direct connection between the two articles referred to in my title are that they both appeared on the Metropolitan Corporate Counsel website yesterday. An interview with Warwick Sharp of Equivio is headed The processing mountain was blocking the view – new mountains to climb in e-Discovery. An interview with Anthony Pacheco of Proskauer is called The FCPA and UK Bribery Act: Compliance Programs essential.

There is another connection – they are both superlative articles of their kind, and on subjects which are topical and important. I have done an interview with Metropolitan Corporate Counsel for such an article. It took more than two hours, mainly because the interviewer was genuinely interested in the subject matter, not just knocking out copy to fill some space.

I see no point in summarising either of the articles, hoping that you will accept my recommendation that you read them. Warwick Sharp once told me something he was told at university: you know that you have described something adequately if you have explained it to your mother and heard her explain it to somebody else. One’s mother, in this context, stands for anyone who is unfamiliar with the subject-matter. If that is your position in relation to predictive coding, then Warwick’s interview will fill the gap for you. I particularly like his conclusion that law firms are the potential winners not, as they might think, the losers, from the adoption of technology of this kind.

I found both of these articles through Twitter – it would be more correct, in fact, to say that they found me, because they turned up in my screen on being tweeted or retweeted by someone whose recommendations I rely on. I retweeted them in turn, but that is because I choose to be an active rather than a merely passive user of Twitter. There are many reasons why you may have decided that Twitter is not for you. It is worth stressing that you can get enormous benefits from it as a purely passive user, selecting a few people to follow and reading linked articles which appear to be relevant to you. You may get drawn into the discussions and you may go on to use Twitter as a communication tool of your own, but many people use it simply to get timely and targeted information about things which interest them.

Home

Twitter, bribery and 37 corporate counsel in a big virtual bar

All your highly-polished marketing materials are useless if you do not get them in front of your intended audience and engage with them about it. An article intended merely to point you to a source of messages about the Bribery Act became side tracked – in a good way – into a discussion about the media used to promote it. Dust off that Twitter account which your marketing people opened one Friday afternoon and have been too nervous to use.

You have a specialist subject which is of interest and importance to a wide range of people and which ought to be known to and understood by many more. It is a multi-faceted subject which can be approached from many different directions and is of interest internationally. People, both those already knowledgeable about the subject and those coming new to it, seem to appreciate what you write. You are competent in modern means of disseminating information and views, have plenty of energy and do not mind working seven days a week.

No, this is not about me but about Barry Vitou of Pinsent Masons London who, with Richard Kovalesky QC, uses thebriberyact.com, to bring news and views on the UK Bribery Act which comes into force shortly. Actually, is it not really about Barry, who in this context merely serves as a hook for some thoughts on using modern media forms to promote ideas and demonstrate expertise. His approach is the same as mine, but I have been looking for an example which will not be confused with my promotion of me – I don’t mind doing that, of course, but it muddies the example if it has that parallel motive.

I have referred to thebriberyact.com already (see Some resources on the UK Bribery Act 2010). The crossover between e-disclosure / e-discovery and the Bribery Act is obvious (the clue, if you need one, lies in the Bribery Act defence of “adequate procedures”), and Barry and I are jointly presenting a breakfast session with Iron Mountain on 8 March.

I come back to the subject now, partly because you might otherwise miss the stream of useful articles appearing on thebriberyact.com or linked from its Twitter account, and partly because I met Barry last week at the suggestion of Malcolm Durant of Iron Mountain. We met at Barry’s club, the flavour of which can be gathered from the minimalist rules which seem to come down to “be polite”; the dress code reads “nudity is discouraged” and it positively welcomes both laptops and dogs, all of which make it my kind of place (I once belonged – briefly – to a London club which was so impolite as to send my wife back upstairs – the backstairs, not the one reserved for gentlemen which she had descended – to put on her ball dress for breakfast because women in trousers were banned, as was any evidence of business; I am sure that dogs were no more welcome than women, though you would probably have been allowed in on a horse).

A week of law, justice and public opinion

Last week saw the mobilisation of a large body of opinion via Twitter in support of the airport “joker” Paul Chambers. If we cannot exactly claim success, we have at least seen how quickly a mass protest can pick up. By contrast, the same week saw a violent student protest which was entirely counter-productive. If the law was an ass in one court, it was guardian of our rights in two others where the courts acted as counter-balance to politicians.

Legal commentator CharonQC (http://charonqc.wordpress.com and http://twitter.com/Charonqc hides a deep concern for freedom and the law behind a façade of banter and quizzical amusement. He was quick to spot the irony of the conjunction between the trial and conviction of airport “terror” tweeter Paul Chambers and the launch last week of Magna Carta’s 800th anniversary celebrations. Those who do not know about Chambers’ twitter “joke” (it was not that funny, really, but equally was patently not serious) can catch the details of the original conviction here and of the appeal here; those who do not know about Magna Carta include the humourless little man in a regional CPS (Crown Prosecution Service) office who authorised Chambers’ prosecution. Quite what to make of the judge, I do not know, and had better not say.

Neither the airport staff nor the police took Chambers’ tweet very seriously. I do not know what it takes to become a prosecutor in a regional office of the CPS – I have always assumed that it is what you do if you aren’t good enough to get a place in a barristers’ chambers or a firm of solicitors. Meanwhile, Twitter is full of people repeating the original tweet with the hashtag #iamspartacus; lawyers are announcing their shame at their profession; greatest living Englishman Stephen Fry has effected a remarkable comeback from his recent vilification; and the little drone at the CPS continues to assert that the prosecution was justified.

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

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

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

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

Tweets travel far and fast – which is good if that is what you want

The speed with which I got reactions to a tweet of Saturday showed the power of this medium. That is great if that is what you want, as I did, less so if that was not the intention. My arm is fine, thanks.

It was a short, pissed-off sort of tweet, which read Charlie Dale has broken his arm falling on the ice – just great for a drummer. Most of my tweets are business-related – they are either about eDiscovery / eDisclosure or are meant for people I know, most of whom are friendly members of the eDiscovery world. I put a measured amount of personal information (that is, information about me as opposed to the market) because a commentator’s comments are more valuable if you learn something about him – what you know about his background, prejudices and cultural hinterland affect the weight you give to his observations. Besides, if all I did was copy and paste press releases, no-one would come and read what I write.

New Singapore e-discovery resource

Those who come here often will know that I was in Singapore in October last year shortly after the introduction of their Practice Direction No 3 on Discovery and Inspection of Electronically Stored Information . I had been invited to speak at and to co-chair the LexisNexis conference there, and Senior Master Whitaker was in Singapore anyway at the invitation of the Singapore courts. My article about it LexisNexis eDiscovery Conference in Singapore made it clear that I expected Singapore to become a source of interesting and positive developments in the e-disclosure / e-discovery market.

Singapore is of particular interest in that, whilst it clings (quite rightly) to the proper term “discovery”, its discovery rules are firmly based on the disclosure rules of England & Wales. It has the luxury of taking the best of developments in other jurisdictions which, whatever they call the process, require the preservation and exchange of documents.

Twitter data feeds as a potential source of income for them and discovery material for us

A new survey relies on the ability to analyse Twitter usage, and Twitter has begun a drive to make money from its data feeds. Both point towards the use of Twitter data as discoverable information.

I wrote an article last week called Tweeting weights and weighing Tweets which described how I use Twitter both as a source of information and as a means of telling readers about my own articles. Amongst the benefits, I said, was the development of ad hoc communities of interest in which formal introductions and agendas were unnecessary to get a discussion going.

I also referred in passing to the inconvenience caused by the UK’s pointless use of the word “disclosure” in place of the term “discovery” used in the rest of the world. That includes amongst its by-products the need to flag tweets and other web content with both terms – to call Twitter’s own search tools “rudimentary” is over-polite.

A strand of correspondence opened up on Twitter in the impromptu way which Twitter encourages. Ron Friedmann @ronfriedmann of Integreon had talked light-heartedly of a “tweet weighter” which, I suggested, could be used to discriminate between a tweeter’s valuable thoughts on e-discovery and his ruminations on his football team, mistress or illnesses. Craig Carpenter @craigrcarpenter of Recommind popped into the correspondence, and I suggested that Recommind ought to run with the idea. I wanted a cut, I said, for “turning Ron’s stroke of genius into a marketable idea and pitching it to a major player in search”.

Tweeting weights and weighing Tweets

I am a relatively recent convert to Twitter and am hooked on a number of levels. These are primarily business-driven, in the hard-nosed sense that I acquire information from others and disseminate things of my own – the publication of a new article, for example – in seconds.

As a source of information, it is unbeatable for the pithy summaries which the medium enforces and which, in the hands of a good summariser, can keep you up to date even if you do not read the majority of the articles linked from the tweets. I depend (in no particular order) on Rob Robinson http://twitter.com/complexd, Charles Christian http://twitter.com/ChristianUncut, Integreon http://twitter.com/IntegreonEDD, Ron Friedmann http://twitter.com/ronfriedmann, The PosseList http://twitter.com/PosseList and Craig Carpenter http://twitter.com/craigrcarpenter amongst others to pull in interesting stuff about and beyond their own immediate areas of special interest.