Conflicting positions on accessibility of data

July 28, 2014

Neil Cameron wrote recently about two different aspects of accessibility of data in an article called Update on US land grab for foreign emails. One is the demands made by the courts and authorities of one country (usually the US) in respect of data which lies outside their jurisdiction. The other is the so-called right to be forgotten. I am slow to come to it because I spent much of last week at the Sedona Conference Cross-Border Programme on the same and related subjects. They are simultaneously important and intractable.

As its title implies, the article leads on claims made by the US Government for emails held on Microsoft’s servers in Dublin. Privacy campaigners may claim this subject as their own, but it has much wider commercial implications than privacy. One of the subjects which comes up in the New York Times article to which Neil Cameron refers is the question whether Germany will allow its data to sit on Microsoft’s servers anywhere. This is sub-set of a wider question about the business lost by all US cloud providers as customers world-wide decide against keeping data within reach of US subpoenas as well as their spies (though I think you can take it that the spies have a wider range of investigatory tools at their disposal than the courts).

Neil Cameron was recently invited to give evidence to the House of Lords EU Sub-Committee F on the so-called “right to be forgotten” – he is no enthusiast for the unrealistic posturing of EU courts and politicians whose idealistic vision is uncluttered by any commercial or practical good sense. The second part of his article covers this separate but related topic.

His conclusion that we need “a new kind of global regulatory framework… for controlling electronic commercial and criminal activity on some kind of rational and universally agreeable basis” is obviously right. Before we can aspire to this at a diplomatic level, however, we first need a consensus at a state level within each relevant part of the globe. US spies have interests which do not align with those whose purpose is commercial comity; Chinese trade officials conflict with colleagues who guard Chinese “state secrets; EU privacy campaigners have legitimate fears about the use being made of private data by commercial organisations who themselves say that their expansion (and with it their contribution to the economy) depends on cross-border freedom of information as well as of goods and services.

Don’t hold your breath waiting for a global regulatory framework.

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Letting the punishment fit the crime as Mitchell gives way to Denton

July 21, 2014

What was over in moments, added a word to the law’s dictionary, led to countless spin-off cases and applications, cost millions in legal fees, ended reputations and, having left its mark, disappeared from the scene?

There is are curious parallels between “Plebgate” and the judgment called “Mitchell”, either of which could be described in this way. The original incident, the only event with a “-gate” suffix which actually involved a gate, was over in seconds; Andrew Mitchell lost his Ministerial job, one policeman went to prison, others were disciplined and a rotten branch of policing was given a long-overdue shaking; at least two libel cases ensued and the whole consequent series of investigations and civil and criminal claims will keep many lawyers in claret for long after we have forgotten both Plebgate and Andrew Mitchell.

It took Lord Dyson a few minutes rather than seconds to deliver the Court of Appeal judgment known as “Mitchell”, and its consequences have been similar to Plebgate. Millions of pounds have been spent since, in complying with the regime which the judgment spawned, in arguments and applications resulting from it, and in bringing claims against lawyers whose every minor default became a cause of dispute. It is suggested that “Mitchell” was the last straw for some solicitors, already hard-pressed to break even. Court lists were flooded with Mitchell-related applications. A spirt of co-operation, or at least of give-and-take, between solicitors, which had always oiled the procedural wheels, disappeared in a new climate in which lawyers felt it their duty to take every point in case they could “Mitchell” their opponents, and cases which could have proceeded toward trial were delayed as the “Mitchell” point was contested; one involved a delay of 46 minutes in serving a list of documents. Read the rest of this entry »


Take your legal work in, put your legal work out. In, out, in, out, shake it all about

July 11, 2014

The Hokey Cokey, whose words I bastardise for my title, proves to have national variants, rival sources and alternative meanings, not all of them positive.  You can fight about that among yourselves. All I want from it is the idea that legal work (the work in support of a legal function, I should perhaps say) is heading in two directions. Some companies are taking more in house, others are distributing it. Most will “shake it all about” this year. An article by Xerox Litigation Services puts eDiscovery / eDisclosure software and services into the mix.

Sometimes a batch of related subjects comes at you at about the same time, making it easy to assume that the subject is on everyone’s lips. That may, of course, be a false conclusion derived from the fact that we select our sources to reflect our interests – the websites we visit and the people we follow on Twitter will have been chosen because their interests (though not necessarily their opinions) match our own. Nevertheless, if a subject recurs, there is probably something worth investigating.

A theme which came up recently for me, in different places, was about how companies get their legal work done and how law firms deliver services at a cost which is acceptable to the client whilst giving them a profit. Professor Richard Susskind has long sneered at law firms whose response to downward pressure on fees is simply to knock 5% or 10% off their hourly rates. We have moved beyond that to serious thought, by both companies and law firms, about who should do the work and where it should be done. The answer to these questions may involve thinking afresh about the distribution of work within the company or firm; it may involve collaboration with outsiders who can perform discrete functions in a way which reduces cost whilst maintaining quality.

XeroxMost of the sources which come my way are likely to have an eDiscovery / eDisclosure or litigation context, but the subject obviously goes wider than that. A US article from Xerox Litigation Services and Bryan Cave, whose self-explanatory title is Corporations moving into the eDiscovery drivers’ seat, is my destination, but my route to it goes via UK articles, none of which are specifically focussed on litigation. Like the Hokey Cokey, the ideas turn up in broadly similar form in different countries. We say “Cokey”, they say “Pokey”; we say “eDisclosure”, they say “eDiscovery”; the broad concepts are the same. Read the rest of this entry »


US Magistrate Judge John Facciola announces his retirement

July 3, 2014

US Magistrate Judge John Facciola has announced that he will retire later this year. The eDiscovery world will feel smaller without him. Those of us who believe in the efficient, just and competent management of electronic discovery will be sorry to see him go. Government agencies with broad unfocused discovery requests, and lawyers whose competence does not extend to 21st-century technology will perhaps be less sorry.

I first met him at a round table at the Willard Hotel in Washington in 2007. Quite apart from his invaluable contribution to the discovery discussion, he told us how, many years before, he had watched the wreckers’ ball rumbling up Pennsylvania Avenue on its way to demolish the hotel. A last-minute injunction had saved it. John Facciola is full of such stories; they and the good-humoured way in which he tells them, are the sweetness which make his often fairly sharp medicine go down as he lays into those parties and lawyers who could have made the whole process better but passed up the opportunity.

Facciola1Judge Facciola’s 2009 speech at LegalTech in New York at which he laid into lawyers who were not competent to conduct eDiscovery in an electronic age.

I have told before how IQPC years ago asked for my recommendations for US judges for a panel in London. “Ask Judge Facciola and Judge Grimm” I said, much as one might suggest asking Pavarotti and Domingo to a local singalong. A few days later, IQPC sent me a message – “We have got them. What would you like to do with them?”

Patrick Burke, now at Reed Smith but then with Guidance Software, and I put together a panel involving those two American judicial stars, with HHJ Simon Brown QC and the then Senior Master Whitaker representing the UK. We did it more than once, and it went down very well. I used to write playlets, a form of light entertainment in which Judges sent up themselves and the system with pastiches of eDiscovery opinions and judgments. John Facciola played his parts with good humour and a light touch which might have surprised those who came before him in his court with extravagant demands or badly prepared eDiscovery arguments.

Facciola2

5 judges perform one of my eDiscovery playlets. Judge Facciola is 2nd left

I took part in two events in his company at the tail end of last year, one at the ASU Arkfeld event in Arizona and one with UBIC in Washington. At both of them he combined wisdom withhumour, the velvet glove of mirth masking the iron fist of criticism for those who couldn’t be bothered to get it right – to read the rules, to understand the cases, to get their heads rounUBIC Seminar in Washingtond the technology, and to cooperate. Here’s a link to my report of the UBIC event, much of which is taken up with my account of Judge Facciola’s talk.

I understand that John Facciola will continue to give us the benefit of his wisdom outside the court. I wish him a long and happy retirement and I hope that US discovery practice will live up to the ideals which he set out.


Looking beyond the Gartner Magic Quadrant for eDiscovery Software

June 27, 2014

Gartner’s annual Magic Quadrant for eDiscovery software was published last week. I am not sure that I am authorised to publish it, but you can find several copies of last year’s version on the web. I wouldn’t worry too much about the differences if I were you.

There are various reasons why I usually avoid writing about the Gartner eDiscovery Magic Quadrant. One is the fact that many of those who sponsor the eDisclosure Information Project appear in it somewhere; it would be invidious for me and rather dull for you if I were to pass on each of their press releases – if I do that with one, I must do it with all. Does a recital of names interest anyone without the detail which you can find in the report or by doing a quick Google search for the report’s name?   Quite apart from anything else, I have a policy of avoiding lists, mainly because it is too easy to leave somebody out; I broke that rule last week and it took a little over ten minutes before a (mock-)hurt reaction came in from the person I had failed to mention.

David Horrigan of 451 Research has written about the Magic Quadrant for Law Technology News and he asked me for a few words. His article is headed Stagnant Magic Quadrant for 2014 E-Discovery,  and I am quoted as being “sceptical” with this:

I am no great enthusiast for lists which purport to rank e-discovery software providers, feeling that even Gartner’s sophisticated model does not do justice to the range of factors which contribute — or which ought to contribute — to the decision-making. Read the rest of this entry »


Information Governance – what it is and why we need it

June 16, 2014

ZyLAB and the Information Governance Initiative join forces to spread some light about Information Governance in an on-demand webinar.

The Information Governance Initiative is a cross-disciplinary think-tank and consortium dedicated to advancing information governance practices and technologies. It is supported by many of the technology companies whose software and skills transfer easily from electronic discovery into the prior and wider field of information governance.

Screen Shot 2014-06-12 at 22.03.33One of those companies is ZyLAB, whose range has long extended into what is now called information governance, with software solutions designed to help companies manage the data which they possess for positive purposes as well as for the reactive and defensive purposes of dealing with eDiscovery and investigations.

One of the principal architects of the information governance initiative is Barclay Blair of ViaLumina. One of the most highly-regarded speakers on corporate data management is Mary Mack, Enterprise Technology Counsel at ZyLAB. They come together in a recently-broadcast webinar which is now available for download here. Its title is Information Governance: what it is and why we need it, and it gives a first rate overview of this increasingly important subject, and at a practical level. The IGI’s own page about the webinar is here.

Barclay Blair begins by setting up some of the claims for information governance, only to knock them down into practical reality. There is talk, he said, of data as “the new oil” and “a new asset class” and we are told of the great things that data can do for us, with thousands of jobs to be created as companies recognise that 60 to 70% of their data is at best junk and at worst toxic.

All that is true, Barclay says, but his purpose is to examine what he describes as “the disconnect between breathless data talk and reality”. How in practice should companies tackle this data and who should run the project? Read the rest of this entry »


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 »


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