The hunter-gatherer phase of eDiscovery

June 11, 2014

I don’t flatter myself that anyone but my wife and the dog notices if I am away a lot, but you might perhaps have observed that there have been relatively few posts here in the last couple of months. If it is worth recounting briefly where I have been, that is because it may say something about what is happening in the eDiscovery / eDisclosure world rather than because I expect any great interest in what I am doing.

My life is broadly divided between the assimilation of information about eDiscovery / eDisclosure and the dissemination of that information in a form intended to make it a little more palatable than the raw material of press releases, rule changes and judgments. I could, I suppose, do that from my desk, but that means relying on the writing of others as my sources. I prefer to get out there and see it for myself, talking with the people who dirty their hands with eDiscovery, whether as client, lawyer, judge or provider.

If that is my catchment area in one dimension, another lies in the geographical spread of the subject. Having parallel interests in the UK, Hong Kong and the US as well as other places means that I spend a lot of time travelling (I mean I do a lot of flying not, alas, that I have cracked time travel).

Yet a third dimension comes from the fact that the subject keeps widening – regulatory investigations, internal investigations, information governance and cyber security are all both interesting and important alongside eDiscovery.

Ideally, the year would be divided into neat phases, with time between trips to write it all down. The events calendar does not, alas, work like that, and most of it seems to be jammed into April and May. I do not write the thoughtful stuff while I am travelling, partly because I prefer to take the opportunity to talk to people and partly because the mechanics of travel are not conducive to thought.

My passport has gone off to be replaced before it expires in July, so I have the opportunity to test the rival claims of a union spokesperson who claims that redundancies have caused a backlog of applications and a pen-pusher (today backed by the Prime Minister) who says that all is under control. I don’t much mind, since I have no plans to travel until ILTA in Nashville in mid-August.

A long run of trips came to an end last week. The week began and ended with cross-border discovery – moderating a forensics panel in South Carolina on Monday and recording a cross-border webinar from home on Friday. In between, I did the annual LexisNexis disclosure video webinar, in the company of Professor Dominic Regan and Mark Surguy of Eversheds. Having spent a coming-down weekend in a house in a field in Wiltshire, I can now start working my way through the large store of things which have accumulated in Evernote.

The text in Evernote – saved web pages and my own notes – is only a part of what is collected on one of these trips. That feeds the articles on this blog and the shorter industry-related articles on this one, but increasingly the written material is supplemented by videos and photographs. My son William comes with me for many of these trips and we do video interviews as we go. The last event resulted in over 30 GB of media data; this adds considerably to various things – the weight of equipment which we lug around, the work involved in turning the raw media into something usable, and (which is the purpose) the range of things which we can publish. If it slows down the production cycle, that is both inevitable and a small price to pay for diversity of output.

I will in due course write more fully about some of the events which I have attended, but a brief summary gives you some idea of what I come across as I tour the eDiscovery world. This has been a hunter-gatherer phase. The fruits will follow shortly. Read the rest of this entry »


Cardozo School of Law launches Data Law Initiative

June 10, 2014

The Benjamin N Cardozo School of Law in New York has launched a new programme offering legal training in information governance, electronic discovery, data privacy, social media law and cyber security. Between them, these subjects cover a wide range of areas which are essential for 21st-century lawyers.

The director of the CDLI will be Professor Patrick Burke, Counsel at Reed Smith LLP. The Associate Director will be Professor Denise Backhouse, a shareholder at Littler Mendelson, whose practice focuses on the discovery, international data privacy and security issues. I have known both of them for a long time and can say with certainty that Cardozo has picked the right people.

US Magistrate Judge John Facciola, a well-known judicial authority on eDiscovery and related matters, has long complained that the training offered at most US Law schools differs very little from what he was taught 45 years ago. The course devised by Cardozo aims to remedy that, at least for those fortunate enough to join the courses.

There is a press release about the initiative here. Patrick Burke and Denise Backhouse are supported by a a 20 strong Board of Advisers; I know 14 of them and can say from personal experience that this is as good a selection of advisers as could be found for a law course whose focus is on practical things.

Here is a video interview which I made with Patrick Burke and Denise Backhouse in February in which they describe the importance of the broader educational initiatives to which they and Cardozo are committed. I will be interested to hear from them how it goes.

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The stars of eDiscovery take to the silver screen: A Decade of Discovery

May 29, 2014

Where will you find every starlet who ever removed her clothes for the cameras, every axe-wielding, blood-sucking, teeth-baring monster, every passionate or sighing lover, every type of comic, character, hero and villain, and quite a few federal judges?

The answer, perhaps surprisingly, is in the film database IMDb which now includes an entry for a film called The Decade of Discovery. Its cast list includes at least seven federal judges and several others, like Jason Baron of Drinker Biddle, who have pushed at the frontiers of electronic discovery.

The first American film which I remember seeing at the cinema was How the West Was Won, which my father took us to see on its release in 1962. It covers several decades of the story of America’s expansion, and portrayed ultimate triumph over an endless succession of set-backs and disasters; the only scene I can recall involved a family being carried away downstream on a raft which is, I guess, a pretty good analogy for the pell-mell development of legal processes, lawyer skills and the technical industry which is eDiscovery. Read the rest of this entry »


Blurmany and Spain, you and me – the trade-off between convenience and privacy

May 28, 2014

Loss of privacy is the price we pay for the convenience of Internet and mobile technology. Different countries and different age groups accord varying degrees of value to the one and to the other. Germany and Spain have their own reasons for thinking about the balance more carefully than others. Is it worth doing without Street View because Honecker’s East Germany set neighbours to spy on each other? What, if any, is the relationship between the horrors of the Spanish Civil War, the so-called (and probably illusory) ‘right to be forgotten”, and the Google Spain case? Is there a difference in attitude between the generation above me (which lived through the war) and the one below (which happily surrenders its personal information in exchange for social benefits). What about me – what do I think?

I don’t purport to answer all these questions, but it is worth kicking them around.  If you can’t deduce what “Blurmany” is, the answer lies below.

The use of Google’s Street view in Germany came my way twice recently, once in connection with my own attempts to use it and once through a blog post by someone else which linked back to an old post of mine. The theme is the trade-off between loss of privacy and the benefits derived from data-sharing. The point about Street View is that its burden (the loss of privacy) is asynchronous with the benefit (which generally accrues to someone else).

First, why did I want to look at German Street View? My degree was in history, and I retain an interest in it. I like standing in the place where some historical event took place. In Oxford, where I live, you can still see the notch cut in a column in the University Church which supported the back of the platform on which Thomas Cranmer stood to hear that he would be burnt to death the following day; you can stand where he stood. Charles I escaped from Oxford by riding down the lane where I walk every day; Lawrence went that way also on his way to investigate a mound on Port Meadow (that’s T E Lawrence, not D H btw – they were interested in different kind of mounds). I can’t see a scene from a photograph without wanting to know exactly where it was taken. Read the rest of this entry »


Delivering eDisclosure advice from both sides of the fence: interview with Stephanie Barrett of Navigant

May 27, 2014

One of the continuing themes in eDisclosure / eDiscovery, in the UK as in the US, is about finding (and then keeping) people with appropriate skills. Wherever they work, eDisclosure people need to have their feet on two sides, one to do with legal procedures – the timelines and deadlines, the formal requirements, the resource management and the control of costs – and one to do with technology. That has its own processes which involve far more than “pushing buttons” (I use that expression because many lawyers use it as shorthand for the whole range of computer and process functions, apparently assuming that this is all you have to do).

eDisclosure (I will stick to the English term) is a new discipline, attracting people from law and from IT as well as from other areas. Legal purists dislike the term “the eDiscovery market”, but it has all the elements of a market: lawyers in corporate legal departments or in law firms have a problem to solve, and a new industry of software and services providers has sprung up to serve them, competing with each other with their differing technologies, their range of support services and, not least, the quality of the people whom they employ.

Part of that competition, as I implied in opening, is that both sides of the divide need to attract the right kind of staff. It is not unusual for people to cross the divide, moving from a software and services provider into a legal department or law firm, or vice versa.

Steph-Profile-Pic-2One such is Stephanie Barrett, who has recently joined Navigant as a managing consultant after seven years of delivering eDisclosure support at a London law firm. What is it like to make that move, I wondered. What are the similarities and differences between the roles? Is there a “dark side” and, if so, which side is it?

Chris Dale: Can you start by telling us what your role is at Navigant?

Stephanie Barrett: My role as a managing consultant at Navigant involves providing project management and consulting support, overseeing each stage of the EDRM model, along with advising on processes to maximise efficiencies and achieve value for our clients. Read the rest of this entry »


Identifying opportunities at the second ALM – ILTA Legal Technology Summit in Hong Kong

April 28, 2014

AsiaTechSummitALM and ILTA brought their second Asia Legal Technology Summit to Hong Kong in March. I make no apology for reporting on this event several weeks after it took place. I went on a long trip to the US almost immediately after it, and UK events have kept me busy since. The output includes photographs and video as well as words, and these take time to process. Besides, these big events have significance which lasts beyond the day itself. As it happens, I am back in Hong Kong this week for another legal technology / eDiscovery event; the fact that Hong Kong can support two such events so close together is itself interesting.

Henry DickerAs with last year, the event was held in the JW Marriott in Hong Kong, one of the more attractive venues for such conferences. Welcoming speeches were made by Henry Dicker, CEO of LegalTech (right), and by Barry Wong of sponsor Consilio (below). Both emphasised the increasing opportunities which Hong Kong offers to those with expertise in electronic discovery and other areas where legal services matter.

Barry WongConsilio, for example, is a global company with offices and data centres in North America, Europe and Asia whose growth in AsiaPac reflects the fact that big clients, wherever their formal corporate headquarters, conduct business everywhere and, increasingly, in Asia. To some extent, the US heritage is valuable, not least because of its business, regulatory and technology leadership; that must be combined, however, with an understanding of local culture and practice and a sensitivity to the fact that US commercial imperialism does not necessarily travel well in undiluted form.

A recurring theme at the conference, therefore, was that business and legal offices in AsiaPac are a) much the same as elsewhere in many ways, b) are different, for all sorts of cultural reasons which are not easy to detect and c) can benefit from the experiments and the learning which has gone on elsewhere. You need feet on the ground as Consilio has, not the occasional parachutist from the US, for this to work. Read the rest of this entry »


Neil Cameron on Casey Flaherty: can most lawyers use their law firm’s expensive IT properly?

April 23, 2014

Neil Cameron has been writing about lawyers and technology for ever where “for ever” means “even longer than I have”. When I first started getting into the subject in the ’90s, Neil Cameron was already there, writing articles and giving talks which covered everything from infrastructure and applications to law firm IT strategy. He was the first person I came across who used everyday personal technology as it emerged and correctly anticipated the convergence between the technology and the skills to use it and their application to business practices.

Casey Flaherty is a new arrival on the this scene, causing a stir from his position as in-house counsel by testing and criticising the inability of external lawyers to use the most basic technology efficiently and, as a separate strand, urging eDiscovery providers to come up with a standard format for quoting for their work. I first came across him in San Diego last year and I interviewed him at Cicayda’s RelEvent conference in Nashville last year – the video is here.

Neil Cameron’s article Can most lawyers use their law firm’s expensive IT properly? focuses primarily on Casey Flaherty’s first point. I won’t paraphrase it for you because it is worth reading. I like in particular the reference to “rocket surgery” in a sentence about auto paragraph numbering with its (possibly unintended) implication that lawyers are trying to fix something which is moving too fast for them to get a grip on. Read the rest of this entry »


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