Goodbye old friend: farewell to Browning Marean

August 24, 2014

BrowningDublinBrowning Marean of DLA Piper US died a couple of days ago. He had spent much of the year undergoing treatment for oesophageal cancer. When we spoke on Skype recently (oh so recently) he was excited at events coming up in Dublin and Prague which would be the first time I had seen him for months. At ILTA in Nashville last week, his many friends heard of his sudden readmission to hospital and stopped each other in the corridors to ask for the latest news. No-one else in eDiscovery – no-one else I know anywhere – could get the level first of concern and now of grief as he has had.

Craig Ball wrote a warm appreciation of Browning which you will find here. I have put up on Flickr some of the many photographs I took of him in the places we visited together – the US of course, but also London, Dublin, Hong Kong, Singapore, Sydney, Prague, Munich, Macau and, of course, Oxford. He would ring me up with his flight arrangements and make me promise to “break bread” (one of his warm phrases) with him – not that I needed encouragement. Even now, when I get out of airports in distant places, I still expect him to be the first person I see at breakfast on the first day of events, if not in the bar the evening before.

I was introduced to Browning Marean at a party in London in, I guess, 2007, by Jonathan Maas, then at DLA Piper and now at Huron Legal. I can picture the setting, the place in the crowded room, the circle of people pleased to keep the company of this man with a Father Christmas twinkle, the one-liners of a stand-up comedian and the serious interest of an eDiscovery expert. I had recently reached the conclusion that I could not talk and write about UK eDisclosure without understanding what went on in the US – how else could one rebut the frequently-met argument that “eDiscovery is something Americans do, and look what expense it causes” – and Browning was to become my guide. Read the rest of this entry »


Could an English court require lawyers to make a video about their disclosure obligations?

August 12, 2014

I recently wrote an article about the Court of Appeal’s decision in Denton which I called Letting the punishment fits the crime as Mitchell gives way to Denton. As the title implies, I suggested that Denton took us some of the way back to Lord Justice Jackson’s intentions and that the courts were now better able to exert discipline in a way which had regard to Jackson’s original intentions. I cited Gilbert & Sullivan’s Mikado as a model for the idea that the punishment should fit the crime.

A US judge has taken this one step further. Faced by a party whose conduct of eDiscovery involved taking every point and other activities which lost sight of the “just, speedy and inexpensive” requirement in Rule 1 of the Federal Rules of Civil Procedure, the judge focused on the value of educating the delinquent lawyers. He required them to make a video explaining the proper way to manage eDiscovery. The story is well told in this article from Above the Law which annexes the judge’s order and sets out the more quotable passages in the ruling.

One is a generalised complaint about the conduct of eDiscovery which is worth repeating. It reads:

Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught…. Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »


Video marketing, fixed pricing of litigation services and Precedent H

August 7, 2014

You know how you sometimes start a conversation and quickly realise that you would have done well to keep your mouth shut? I did that last week. Fixed-price quotations for legal services and the defects of the CPR’s new budget requirements are important and interesting subjects; they were not, however, what I was after with my simple tweeted commendation of some video marketing in which I gratuitously said that the subject was interesting as well as the format. My main focus was on how you get messages across; what followed quickly became a discussion first about the message itself and then about the underlying practice problem.

I don’t complain about this by the way. This is how Twitter works, flipping from subject to (more or less) related subject, like pub conversations in which passers-by pick up on the bit which interests them and send the discussion down another track. Besides, the subjects of how you undertake legal work, how you quote for doing it, and how you describe your services and prices to the buyers in competition with others are closely related. Read the rest of this entry »


More on accessibility of data – judicial imperialism, the right to be forgotten, and spies

August 4, 2014

There is more to data accessibility than eDiscovery / eDisclosure which is my main subject. The use of data in one jurisdiction which exists in another is of growing concern, and not just to lawyers. The subject comes up again only a few days after I last wrote about it.

My recent article Conflicting positions on accessibility of data covered two different aspects of an increasingly important subject, the so-called “right to be forgotten”, and the increasingly insistent demands from US courts and agencies for access to emails and other data held outside the US. The work of the NSA comes into a third and rather different, since at least the first two involve some consideration of competing interests and conflicting laws; spies don’t worry too much about that sort of thing.

The first two subjects were conjoined in an article by Neil Cameron to which I referred in my own article. He has written again on the “right to be forgotten” following the publication of a report by the House of Lords EU sub-committee to which Neil gave evidence. The report is called EU Data Protection: a “right to be forgotten”? Note both the quotation marks around “right to be forgotten” and the question mark at the end. Neil Cameron says:

The good news is that the Committee has unreservedly, if not robustly, concluded overall that the so-called “right to be forgotten” (as it is currently defined by the ECJ and demonstrated by Google’s current attempts to conform to the judgment) “must go. It is misguided in principle and unworkable in practice” and that in the light of current technology “it is no longer reasonable or even possible for the right to privacy to allow data subjects a right to remove links to data which are accurate and lawfully available.”

Meanwhile, Microsoft has lost in its current bid to deny a US court access to emails stored on its Dublin servers. You might like to see an article on ZDNet called Microsoft ordered to hand over overseas email, throws EU privacy rights in the fire. The subject is further analysed in an Inside Counsel article called Microsoft will appeal judge’s decision on data stored in Ireland.

You may be interested also in Google’s reply to the EU’s article 29 working party to its complaints about Google’s implementation of the decision by the European Court of Justice in the Google statement case.

As with so many things, it is easy to be dogmatic and black and white about these conflicts. Speaking for myself:

I am against the US judicial imperialism implicit in the claimed right to demand documents from foreign servers.

I am against the idea that Google is a data controller which can be muzzled at the behest of the court, an individual or a business apart from questions of defamation and the proper protection of intellectual property.

I am against the UK’s so called “Snoopers’ Charter” not on principle, but because I do not believe that the relevant authorities can be trusted either as a matter of competence or as one of ethics – how long before the snooping right is abused by some semi-literate and officious pen-pusher in a local authority, by a humourless and stupid little runt at the Crown Prosecuting Service like the one who initiated the airport Twitter prosecution, or by those under-cover policemen recently caught sharing the lives of environmental activists incognito?

Most of all, I am against the untargeted collection of communications data by the NSA.

A more rounded view is required, however. Is it right that US corporations can put data beyond the reach of US courts by simply moving it to foreign servers controlled by foreign subsidiaries? Should Google be at liberty to disseminate personal data without any right given to the subject of that data to complain about it? At a time of increasing terrorist and criminal cyber-activity, can one properly deny to the state the power to keep an eye on those who would do us harm?

If you think there are simple choices here, you are not thinking enough.

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Comparing like with like and keeping eDisclosure fears in proportion

July 30, 2014

“E-disclosure is about being clever with the way you do document reviews. It’s about picking the right search terms, using a good provider and having a proper hosting platform.”

This sensible quotation, from RPC disputes head Geraldine Elliott, appears in an interesting article in The Lawyer of 28 July headed Special report: eDisclosure – trials and tribulations.

To my eye, the article includes some implied comparisons which paint a misleading picture: the overall cost of using one technology must be compared with the overall cost of using another or of using none, including the cost of time spent or saved; return on investment must include savings and strategic and tactical benefits, not merely expense over the life of a case; a few extreme examples of egregious disclosure failures do not justify disproportionately expensive disclosure exercises in all cases – that was the American way, and we want none of it here.

With one exception – confusing the word “sanctions” (as in “punishment for default”) with the consequences of that default, namely the entry of a default judgment for the sum claimed, I do not really disagree with the components of the article. Strung together, however, the overall impression is perhaps not quite as its separate contributors intended. As it stands, it reinforces the perception that eDisclosure is simply threatening, technical and expensive. It may be all those things, but lawyers who just conclude that new technology is too expensive without looking at it, who omit half the equation when comparing costs, and who read only the cases in which people screwed up, are unlikely to develop a rounded view.

The article includes interviews with people who are engaged in eDisclosure exercises, and includes discussions about the rule changes and case management strictness, and the different ways in which firms are managing electronic disclosure, as well as some references to cases which have not gone well for at least one of the parties.  I focus here on a couple of areas which I would have expressed slightly differently. Read the rest of this entry »


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 »


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