ILTA 2014 – the context and the logistics

This post is about ILTA the event – the organisation and the experience of being there. I will write separately about the legal technology subjects which came up in the sessions and in discussion. August 1914 is my starting point for August 2014, allowing me to make comparisons between the book I am currently reading and the organisation of ILTA. If you lack the time and the patience for my comparison between the preparations for war and the planning for ILTA, jump down to the heading The logistics of ILTA.

August1914My book for the journey was August 1914 by the respected American historian Barbara Tuchman. I know how the story ends, not least because I have read the book twice before, but Tuchman manages to invest the familiar with an atmosphere of suspense as the decisions are made – to advance, retreat or dig in, to march this way or that; you read it with hands metaphorically over your eyes as pig-headedness, personal animosities and lack of intelligence (in both senses) lead inexorably to four years in the trenches, with most of France’s coal and iron production left in German hands.  Many of the mistakes had been made long before the war – mistakes of diplomacy, of judgement and, most particularly, of procurement and supply as the Allies prepared to fight the last war; generals are always getting ready to fight the last war.

Armies in 1914 to lawyers in 2014

This is not, as you may think, a precursor to an analysis of the parallels between the armies of 1914 and the lawyers of today, much as I like that kind of example. You do not have to look far to find them. French generals refused to discard the pantalons rouge which made soldiers an easy target; they disdained heavy artillery as being inconsistent with the élan expected from a philosophy which knew only of attack, and they made no provision for entrenching tools for the same reason – only defenders needed to dig in and defence was not on the agenda; newfangled aeroplanes were rejected. Meanwhile, the British Liberal government invested reluctantly in Dreadnoughts but declined to spend any money on dry docks big enough for them or on shore defences for naval bases. The parallels with the way some law firms prepare for doing business in 2014 are obvious – predictive coding anyone? Continue reading

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Browning Marean Celebration of Life Service on 20 September

I understand that Browning Marean’s Celebration of Life service will be on Saturday, 20 September at 2:00 pm at the Westminster Presbyterian Church of Escondido, 1500 S. Juniper St., Escondido, CA 92025.

Although I pass this on as coming from an impeccable source, it would be good to get some more “official” notification before booking flights etc. (once a lawyer, always a lawyer).

Since writing the above, I am told that DLA Piper has published a notice which accords with the information I was given.

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Browning Marean: the tributes pour in

My article about the late Browning Marean Goodbye old friend has attracted several comments from those who were touched by his contribution, personal and professional, to them and to eDiscovery. The English judge HHJ Simon Brown says Browning was “the Global Professor of eDiscovery”.

The recurring themes include the encouragement which he gave to others and the word “laughter” and its synonyms. Herb Roitblat of Orcatec said in a tweet:

It’s good to see that he treated many others as well as he treated me, which was very well.

I knew Browning only a short time compared with others like Tom O’Connor and Craig Ball – my particular privilege was to see him on tour in nearly every jurisdiction in which eDiscovery is required, but they knew him for years. Craig Ball’s article Browning Marean 1942-2014 has been extended since I first recommended it and has similarly attracted many comments.

A lovely post by Tom O’Connor on the LTN site, Browning Marean: a remembrance gives us personal recollections going back to the dawn of electronic discovery. Monica Bay has given her tribute in Browning Marean loses battle with cancer. Both of these LTN articles require registration.

Ralph Losey called his article Browning Marean: the life and death of a great lawyer, the title reminding us that Browning was a lawyer first and an eDiscovery expert as a consequence. Ralph Losey added a tweet today saying that Browning was:

the first big firm attorney to use senior status to specialize in e-discovery and training. Helped his firm, DLA Piper

…while Michael Arkfeld reminds us that Browning used to say of DLA Piper that:

if they knew how much fun I was having, they would fire me.

US disputes lawyers and those who provide discovery services to them are a tough lot, with little room for sentiment in their professional lives. If the industry is in fact softer and nicer than its professional image sometimes implies, then that is in part due to Browning’s influence. It has certainly appeared in the reactions to his death.

There is a set of my photographs of Browning here.

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Goodbye old friend: farewell to Browning Marean

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. Continue reading

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

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.” Continue reading

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Video marketing, fixed pricing of litigation services and Precedent H

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. Continue reading

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

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

“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. Continue reading

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Conflicting positions on accessibility of data

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

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. Continue reading

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

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. Continue reading

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US Magistrate Judge John Facciola announces his retirement

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.

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Looking beyond the Gartner Magic Quadrant for eDiscovery Software

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. Continue reading

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Information Governance – what it is and why we need it

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? Continue reading

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The hunter-gatherer phase of eDiscovery

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. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure | 4 Comments

Cardozo School of Law launches Data Law Initiative

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

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. Continue reading

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

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. Continue reading

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

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. Continue reading

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

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. Continue reading

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

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. Continue reading

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Welcome to Navigant as a sponsor of the eDisclosure Information Project

It is a great pleasure to welcome Navigant as the latest sponsor of the eDisclosure Information Project.

Alex_Dustan_Lee_Headshot_200My primary involvement will be with the Legal Technology Solutions practice in London. I have known the UK practice leader, Managing Director Alex Dunstan-Lee (picture  left) for many years – one of the few people on the services side of the eDisclosure market who served his time as a solicitor at a major firm before moving across to the technical support side. His recruitment to this senior position in August last year was an indicator of the importance which Navigant attaches to its Legal Technology Solutions practice in the London market.

Navigant is well-established in the London market, having provided e-disclosure services for nearly 10 years in London.   Alex’s senior team consists of Directors Tanya Gross (joining Alex from his former team) and Jon Marshall (who has transferred from Navigant’s US practice).  Navigant’s UK practice has also made a number of other investments and hires to focus on expanding its e-disclosure consulting capabilities and (importantly) its structured data (non-standard ESI) capabilities.

I also know Jim Vint, another Managing Director in the global Legal Technology Solutions  practice, who leads the Discovery Consulting practice, based in the US. I have as close an interest in US eDiscovery as I do in UK eDisclosure and it will be good to work with a company with both feet firmly planted on each side of the Atlantic. Continue reading

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A tribute to former Senior Master Steven Whitaker

While I was away, Steven Whitaker resigned as Senior Master of the Senior Courts in the Queen’s Bench Division. Steven Whitaker’s skill lay in making procedure the servant of justice; the prevailing orthodoxy is that procedure is an end in itself, with individual justice in individual cases subordinated to efficiency at all costs.

Steven Whitaker has many friends and supporters amongst those who are interested in justice as it is defined in the overriding objective. For some of us, that interest is primarily a professional one – in the context of case management generally, of electronic disclosure specifically, and of cross-border discovery, each of which he influenced for good. For many others his actions had a direct personal effect, principally the victims of mesothelioma, whose group litigation he managed firmly with an eye to the urgency appropriate to the circumstances and for which he won praise in Lord Justice Jackson’s report. He is also a good bloke, that highest of understated English compliments.

Before I turn to my own tribute, see some of the comments which turned up on Twitter as the news of his departure broke.

SW1

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Justice takes a bashing but litigation work goes on

To say, as I did in a recent article, that that “civil justice in the UK has plunged off a cliff” is not the same as saying that civil disputes are in decline. Litigation lawyers, at least at the mid- to high level, seem to be busy enough, as do most of the London-based eDisclosure providers. The Jackson Reforms, now a year old, have positively generated work for some, although much of the focus has been more on procedural matters than on evidence and issues. Part of this, conveniently labelled “Mitchell”, has been negative, the opposite of the “justice” which the overriding objective requires; part of it, and particularly the eDisclosure aspects, reflect the attention which the rules now require on the sources, the methods and the costs of disclosure. One can deprecate the Mitchell aspects whilst thinking it right that parties are being required to pay early attention to the evidence and to the prospective costs.

Whilst in the US recently, on a tour which embraced both eDiscovery events and a short holiday, I wrote an angry article (“blistering” was amongst the comments I received) on the state of British civil justice. If that seems an odd way to spend a holiday, well, the times are odd and it annoyed me. Better out than in as they say, so I wrote to get it off my chest. The article was headed The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them.

The article had three targets – a Lord Chancellor who seems ignorant of the basic concepts of justice, a Ministry of Justice staffed by people whom I described as “standard issue overpaid time-servers and… academics who have failed to hack it in the strenuous world of university life”, and senior judges whose understanding of the practicalities of business life is defined by their lifetime experience of working for very big firms, on very big cases, for very rich clients.

I referred to one or two of the responses to the Civil Justice Council’s consultation, mainly to show that my observations were derived from the daily experience of those who have to deal with the consequences of these things. I was at pains to draw attention to differences (identified in some responses) between Lord Justice Jackson’s original recommendations and the position in which we now find ourselves. Quite apart from the fact that he had nothing to do with (for example) the reduction in legal aid, Lord Justice Jackson specifically recommended investment in court systems; whilst he was keen to encourage compliance with the rules, it was no part of his plan that we should have the climate of fear and uncertainty which derives from Mitchell. Continue reading

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Survey on the implementation of the CPR as it affects disclosure

Barrister Clive Freedman was, as I was, a member of Senior Master Whitaker’s Working Party which drafted the eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire. He runs an extremely informative website at www.edisclosure.uk.com covering the law and practice of eDisclosure.

Clive has prepared a short survey aimed at finding out how parties to litigation are using the new rules. It would be extremely helpful to get some structured information to add to the increasing volume of anecdotal material which comes from Twitter. It should to take more than five minutes to complete the survey.

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The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them

There is a palpable sense that civil justice in the UK has plunged off a cliff in the short time since the implementation of the Jackson reforms. A few of the responses to the Civil Justice Council’s consultation have been published. They make grim reading, particularly as we can be reasonably sure that neither the Lord Chancellor, Chris Grayling or anybody at the Ministry of Justice will actually read them or give a toss what anyone thinks about the ruin of the civil justice system.

Although some commentators blame Lord Justice Jackson personally for this (and even talk of a “right-wing conspiracy”), most are willing to acknowledge that there are wider forces at play here and that what we are left with is not what Jackson intended. How do we object? If we are outsiders we are ignored. What insider will raise his head above the parapet? What will happen to him or her?

We have a “Lord Chancellor” who knows no law, who has no feel for what is important about justice, and who just wants to deliver cuts to George Osborne like a small dog bringing a ball to its master. It is said that the senior judiciary decline to refer to Grayling as “Lord Chancellor” out of contempt. I begin to wonder what we should be thinking of the senior judiciary.

Grayling’s personal conduct should be irrelevant: the supine little people who supervise MPs’ expenses turned a blind eye to Grayling’s use of Parliamentary expenses to buy an unnecessary flat, so we should ignore it, notwithstanding that equivalent conduct by a benefits claimant would have landed him in jail; bare-faced lying is a natural trait for a politician, and while we might hope for better in a holder of the ancient office of Lord Chancellor, we get what are given. So we should ignore all this and judge Grayling solely by what he does; that is enough to hang him anyway. Continue reading

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The Commercial Litigation Association of Ireland launches a Good Practice Discovery Guide

As will be clear from other references on this site, I am interested in developments in discovery practice in any jurisdiction for which eDiscovery is required by the rules of local civil procedure.

My most recent involvement in this respect was in Hong Kong where I took part in a panel discussion on the proposed Hong Kong eDiscovery Practice Direction which is closely modelled on Practice Direction 31B in England and Wales.

The Commercial Litigation Association of Ireland has just released a Good Practice Discovery Guide which you can get from the CLAI website here. As with the Good Practice Guide to eDiscovery published last year (I wrote about it here) Mr Justice Frank Clark has been closely involved in its production. Another common feature between the two guides has been the involvement of Simon Collins of Ernst & Young Ireland.

Mr Justice Clarke is one of the speakers at the IQPC Information Governance and eDiscovery Summit to be held in London on 13-15 May where we will have the opportunity of hearing from him about eDiscovery developments in Ireland.

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Nigel Murray gets hip – and rides again for Help for Heroes

eDiscovery and data privacy consultant Nigel Murray is again cycling across northern France on the Big Battlefield Bike Ride between 1 and 8 June in support of Help for Heroes. Two things make this a special year – one is that this is the 100th anniversary of the start of the Great War; the other is that Nigel has recently had a hip replaced.

Most of us would consider that this entitled us to give it a rest. Nigel has always, however, made much of the fact that many of those who take part in this demanding ride are themselves disabled, some of them seriously so. He compares the difficulties posed by his own operation with those who are missing whole limbs, in many cases multiple limbs, and gets back on his bike.

His operation means that he has only just been able to start training. He doesn’t seem to need much encouragement, but let’s give it to him anyway by making a contribution through his fund-raising page. As well as allowing you to donate, this page gives you more information about the adventure.

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Kennedys seminar on 12th March in Birmingham – Surviving Jackson: one year on

Solicitors Kennedy’s gave a seminar this week with the title Surviving Jackson. Many of the points made in it were live-tweeted and the tweets have been collected here by academic and lawyer John Bates @MrJohnBates. They provoke thought.

Kennedys is running a seminar with the same title in Birmingham on 12 March from 2:00pm to 4:00pm. The speakers are Edward Pepperall QC who is a member of the Civil Procedure Rule Committee and Kerry Underwood who is perhaps the most vocal critic of the Jackson reforms. There is more information about this event here.

Knowing the rules is a good start, something which seems to have passed many solicitors by (read some of the judgments if you think I am being overly disparaging here). Anyone might be forgiven, however, for missing some of the implications of the Mitchell judgment and its confusing aftermath. This seminar seems a very good opportunity to try and keep up.

If you are affected by this and are not following barrister Gordon Exall’s Civil Litigation Brief then you should be.

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Launch of the Information Governance Initiative

The most interesting topic of discussion at LegalTech 2014 was not some new technology nor the proposed revisions to the Federal Rules of Civil Procedure, but the launch of the Information Governance Initiative. That is certainly not to dismiss the technology at LegalTech – Equivio launched Equivio Zoom for Information Governance in the same week as the IGI, and Recommind’s Axcelerate 5 made its appearance at LegalTech for example – but the technology is servant to the objectives, and information governance is increasingly seen as the objective which matters; that is why Equivio and Recommind are among the supporters of the IGI.

The inspiration behind the IGI comes from the strong team which has assembled at Drinker Biddle & ReathBennett Borden, Jay Brudz and Jason Baron who, with Barclay Blair of ViaLumina and others, have long been the instigators of constructive thought about information governance.

What is information governance exactly? That is addressed in the description here of IGI’s mission, which lists thirteen key components of IG. None can deny their importance; it is evident too that things will be missed – benefits and opportunities as well as risks – if the management of information sits in thirteen separate silos within a corporation. Continue reading

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Washington and New York to Mitchell via privacy, Singapore and Lobachevsky

The problem with running a website which offers news and updates is that people notice when it lies silent – the essence of news is that it is new. In fact, I have never aspired to timeliness and, as I say often, if it is important now, it will be important in a month’s time. This post supplements a brief note which I put up last week. Most of it is about Washington and its wonderful memorials, about the week in New York with my panels on eDiscovery technology and privacy, and about the things which got in the way when I got home. That includes some ruminations on the fall-out from Mitchell v NGN, on the unpleasant and economically-illiterate thug who carries the proud title “Lord Chancellor” and his minions at the Ministry of Justice, and on the decline of London’s aspirations to be a forum of choice for international litigants, with side references to Hong Kong (where I go next) and Singapore. There is also a bit about plagiarism illustrated by Tom Lehrer. You get variety here, if not necessarily thematic consistency.

I was at LegalTech in New York, the biggest eDiscovery industry show in the world. This was my eighth LegalTech and I know the form by now – back-to-back meetings, a couple of panels to sit on, five party invitations every night, dinners with varying degrees of learning and entertainment thrown in, and someone to talk to round every corner. This year brought the added element of sudden snowfalls leading to deep pools of slush at every crossing, particularly tiresome when your meetings alternate between the Hilton on one side of Sixth Avenue and the Warwick Hotel on the opposite corner.

Our attempts, some four months earlier, to book hotel rooms were defeated by some sporting event which apparently drew most of the US population into New York for the weekend. The cost of flights to the US falls steeply if you include a Saturday, so we went first to Washington D.C. – “we” being me, my wife Mary Ann and our youngest son William. The weather was fine and, as always, we were drawn first to the war memorials. Continue reading

Posted in Chris Grayling, Commercial Court, Data privacy, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Equivio, FTI Technology, LegalTech, Ministry of Justice, Nuix, Singapore, ZyLAB | Leave a comment

Lots of things to catch up with in eDiscovery and civil justice

Yes, there is much to be writing about, and it will all appear here soon – including a post explaining what I have been doing and why there has been a gap in my reporting and commentary.

Briefly, I have been at LegalTech in New York with a brief break in Washington before that. As well as consuming time and energy, LegalTech always generates both material for articles and correspondence. We made a number of video interviews there and have been working to produce those.

Meanwhile, my Twitter timeline has been full of tweets and links about the ever-increasing volume of judgments following the UK Mitchell decision, as well as some vociferous opinion on them – those who sneer at Twitter as being all about what other people had for breakfast are missing a valuable – and always current – source of information. A second strand involves the conflict between Lord Chancellor Grayling’s ambitions to attract legal business and the way in which he and the Ministry of Justice seem intent on driving that business away; other jurisdictions, not least Singapore, are offering sensible alternatives.

In between all that, I spent time being sedated by a dentist, in rearranging appointments thanks to Oxford’s new status as an island, and working on the agendas for forthcoming conferences. Lastly, and more personally, my mother seemed threatened by serious illness which was somewhat distracting – and now, thankfully, not what it appeared to be.

Normal service will be resumed soon.

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Evidence, privacy and proportionality at Lawtech Europe Congress in Prague

I have no particular ambition to write up events as soon as they finish. Distance lends perspective, and anything worth reporting at all will be as valuable a couple of months later. The Civil Procedure Rules of England and Wales gave me enough to be getting on with at the tail end of last year and I only now turn to what was covered at the Lawtech Europe Congress in Prague, the second one organised there by Frederick Gyebi-Ababio.

My own interview filmed on the day gives a summary of why it is important to hold events in central Europe, and correspondingly important for eDiscovery people be there. Prague sits in the middle of a big region and one which is full of potential, not least because of its trade with the US. It is important for businesses and those who advise them to understand the expectations of US discovery, both because they have to face it and because it will become increasingly necessary for these jurisdictions to adopt their own discovery rules – as I say in the interview, a jurisdiction which establishes the content and validity of documents by notarised prints or screenshots has some catching up to do.

This is not just because of litigation – we see a activity by regulators from the US, the EU and within each region, all of whom wants to know what the story is. The story lies in the electronic evidence, and whilst much of the interest perhaps still lies in criminal investigations, civil eDiscovery cannot be avoided. Those who provide professional and technical services will cede the ground to the big four consultants, who are already there for other reasons, if they do not register their presence to some extent.

Paul Salazar of Siemens gave the keynote address, sponsored by Exterro. He ranged broadly over the duties of internal counsel, describing the processes which they must develop in order to anticipate and manage eDiscovery demands.

The emphasis on process can easily obscure the importance of data as evidence. Yuval Ben Moshe of Cellebrite opened the show with a panel whose focus was eDiscovery and the rise of evidence on mobile devices. He had as his panel members Patrick Burke eDiscovery Counsel at Reed Smith, Jo Sherman of edt. and Damian Murphy, an English barrister establishing his own chambers specialising in eDisclosure.

2013-10-E-4236Damian Murphy, Jo Sherman, Patrick Burke, Yuval Ben Moshe

Between them they gave us a good balance between the technical components and the need to focus on what really matters. It is not necessary for proportionality to be enshrined in the rules to get the idea that resources must be proportionate to what you are trying to achieve.

My first panel covered the relationship between scope, method and cost – how much do you need to collect, what is the best way of doing it, and how do you keep the costs within reasonable bounds whilst doing a good job? Continue reading

Posted in Andrew Haslam, Data privacy, Data Protection, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Forensic data collections, Guidance Software, Huron Legal, Nuix | Leave a comment

Reducing the number of documents to be reviewed

Charles Christian’s Legal IT Insider has published a very good article by Drew Macaulay, Managing Director of Consilio in London. Its title is Establishing effective cost controls in litigation and regulatory investigations, and gives the same emphasis to budgets as a Consilio webinar due to take place on 24 January (I wrote about it here) and registration is here) called Understand and control discovery costs in cross-border litigation.

Consilio-webinar

Drew’s article needs no summary from me – it is a clear and succinct explanation of the factors to be taken into account in any eDisclosure / eDiscovery exercise. I draw it to your attention, and specifically in a UK civil procedure context, for one half sentence in the article which reads:

“The primary cost driver and disclosure exercise is the number of documents that need to be reviewed…” Continue reading

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Judge Facciola and Jason Baron top the bill at UBIC’s Washington seminar

UBIC is perhaps best known as a provider of software and services specifically aimed at electronic discovery and with a particular specialist skill in managing Asian languages. It is more broadly based than that, however, and extends into information governance and the management of risk and cost, and into wider areas of search and analysis.

UBIC is running a series of what it calls Signature Seminars, at which speakers from relevant disciplines address issues which affect companies and their lawyers. I took part in one of these, in Washington on 6 December.

UBIC invited me to moderate a panel called Information Governance and Data Privacy Challenges under US Regulatory Investigations. If I had had any doubts about accepting this invitation (it is a long way to go for a 60 minute panel), they were dispelled by the company I would be keeping. The opening speaker was to be Jason Baron, information governance and eDiscovery counsel at Drinker Biddle & Reath; the closing speaker was US Magistrate Judge John Facciola. My panel would be sandwiched between these eminent speakers. Who could resist?

UBIC’s own page about the event is here. It includes links to a video of Jason Baron’s full presentation, and to interviews with Jason Baron, with Christina Ayiotis and with me (I talked mainly about privacy and about metrics and budgets), together with a set of my photographs (you can see those also in a more easily-skimmed wallpaper layout here.

Inormation governance, eDiscovery, technology-assisted review and privacy all featured, as did a barnstorming performance from Judge Facciola about the changing requirements of the lawyers of the future. By “future” he meant now; if part of what he said was critical of lawyer unreadiness, part (as with Jason Baron’s talk) saw a bright future for those who “get it”. Continue reading

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EDiscovery leaders and career opportunities highlighted by US legal publications

Electronic Discovery / eDisclosure is a new discipline. It has passed the Wild West stage but it is still new enough and small enough that the contribution of its founding members can be recognised with the perspective of time. Three US legal publishing companies have produced lists recently of individuals whose contributions have helped shape the industry.

What value lies in reciting other people’s lists? I hear you ask. Well for one thing, my coverage is selective, with a bias towards people I know or have some connection with. For another, two of these articles are not readily available and it is not open to me to just link to them. Third and more importantly, I am keen to encourage people to see a promising career path in eDiscovery; we can’t all be Laura Kibbe or Andrew Sieja, but we can see opportunities in this young and growing business area.

NLJ’s inaugural list of 50 Business Law Trailblazers and Pioneers

Most recent of the articles is the National Law Journal’s inaugural list of 50 Business Law Trailblazers and Pioneers (you see where I got the Wild West imagery from).

This, as its name implies, is concerned with the practice and development of the wider legal scene; I am not sure that electronic discovery would have rated a mention in such a list ten or even five years ago.

Epiq - Laura KibbeOne of the people on the list is Laura Kibbe (pictured left), a Managing Director at Epiq Systems, whose career, summarised in this Epiq press release, has encompassed all sides of the eDiscovery battlefield – as outside counsel, in-house counsel, and currently as Head of Expert and Professional Services for Epiq’s eDiscovery business. I have the pleasure, from time to time, of sharing platforms with Laura, most recently in Hong Kong last year. Not everyone in this industry has the ability to explain lucidly what are the business benefits (as opposed to the pure technology benefits) of eDiscovery tools and processes. Laura has this ability, and it is always a pleasure to share a platform with her. Continue reading

Posted in AccessData, Catalyst, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Epiq Systems, Guidance Software, Huron Legal, Information Governance, Integreon, KCura, Recommind | Leave a comment

LexisNexis Counsel to Counsel Forum – lawyers staying close to the business and its information

My title reflects two themes of interest (that is, they interested me) at the LexisNexis Counsel to Counsel Forum 2013 which took place in Brighton in November. One was about lawyers (whether internal or external) understanding the business for which they work; the other was about social media as a means of keeping in touch with the rest of the world. The obvious thread between these subjects was awareness and connection, and about knowing of and being known by others.

RecommindI was there to join Nick Patience of information management provider Recommind to talk about applying information management technology to business challenges, to proactive risk analysis, to eDiscovery / eDisclosure and to early assessment of litigation and investigations (I’ll stick to “eDiscovery” after this – the venue may have been in the UK but the principles apply everywhere, and everywhere else talks of “discovery”).

The first part of this article covers the value of communication between lawyers and the business, generally and in the specific context of information governance. A second part will report on the social media session itself. Continue reading

Posted in Discovery, Early Case Assessment, Early Data Assessment, eDisclosure, eDiscovery, Information Governance, Recommind | Leave a comment

Mitchell and relief from sanctions under CPR 3.9 Part 3: eDisclosure compliance

Two preceding articles have considered the implications of the Mitchell judgment, one in general terms and one more specifically, with a look at alternative approaches which we might see from the courts.

This third post looks at what the disclosure obligations actually are by reference to rules and cases – not a rule-by-rule analysis, but pointers to sources whose primary focus is on properly reducing disclosure or on the level of competence expected of lawyers (and judges, perhaps). There is probably room for a fourth post concentrating on what might be done to avoid getting into the position where deadlines might be missed.  You have had enough words on this for now (and if you have not, I certainly have) so I will do this bit in the shortest form possible.

There is only so much value in squealing that the sky is about to fall in. Let us accept that strict enforcement of compliance with the rules is a fixed policy of the senior judiciary; what is needed is a is a cool analysis of what is required to avoid the kind of conduct which gives rise to sanctions in the first place. Consistent with my general approach, I try to look at it in more positive ways than merely “How do you avoid breaches?” – that defensive benefit is a by-product of getting it right.  “Getting it right” in disclosure terms includes producing the minimum consistent with the duty to court and client – the court calls it “proportionality”; the client calls it “value”.

Rules and cases

Do read the bloody rules – not just those added in 2013 but those which preceded them and which are still in force. Between them, they offer a code which, properly used, allows you to limit the scope of your own disclosure and to enforce limits on the disclosure of your opponents. “Allows” is actually the wrong word – these rules positively require you to reduce the scope of disclosure and require judges to police that with the “active management” which has been expected of them at least since 1999. Continue reading

Posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Part 31 CPR | Leave a comment

Mitchell and relief from sanctions under CPR 3.9 Part 2 – is Mitchell the last word?

This is the second of (at least) three sequential posts about different aspects of the Court of Appeal’s decision in Mitchell v NGN. The first was called Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy? and looked at the context in which this judgment is set. This one looks at the problems which the judgment gives and at some of the ideas which have been canvassed to mitigate its effect, not least as a result of some other judgments.

The preceding section is really aimed at those who seek a simple answer to a multi-layered and complex set of problems. Blaming Jackson lets us off having to think about the real issues here, as do easy blasts about right-wing conspiracies (and in case you missed the point, my references in that post to Blair, Brown and Balls were a deliberate descent into the sandpit of easy political name-calling. I mean every word, but it does not help us fix the problem in hand, which is the decision in Mitchell).

The problem, and one which Mitchell exacerbates (deliberately, so far as one can tell), is that there now appears no gap between damaging incompetence and the kind of oversight and inadvertence which any of us might commit, nor is any relevant distinction drawn between very big cases in specialist London courts and small ones in provincial county courts. Quite apart from any differences of scale, there is a reason why some judges get elevated to the Court of Appeal and others do not. Continue reading

Posted in CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Jackson Reforms, Lord Justice Jackson | Leave a comment

Steve Couling of kCura turns sweat into cancer support

Steve Couling represents kCura in the UK and Europe. I knew him for a long time without realising that he engages in extremely arduous challenges for charity.

Steve is raising money for Macmillan Cancer Support and his fund-raising page, Couling’s 12 in 12, can be found here. It includes the list of completed activities. Just reading the list of his 12 challenges in 2013 is enough to make me tired.

No one-trick pony he – running, swimming, biking, paragliding, jumping from great heights and crawling through mud all appear on in his list. Just travelling to some of these places would be enough for most of us, never mind participating in the events.

We need to encourage him, not least because we want to encourage him to double his exertions in 2014. Please go to Steve’s fund-raising page and help support a worthy cause.

Couling1 Couling2

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Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy?

One of the many advantages of not being a journalist is that I do not feel the need to react immediately when major developments occur. The news in November that the Court of Appeal, led by the Master of the Rolls, Lord Dyson, had upheld Master McCloud’s judgment in Andrew Mitchell v MGN prompted a flood of articles and comment ranging from the apocalyptic and apoplectic at one extreme to “What did you expect?” at the other.

If you missed it and want to hurry on to something else, the judgment’s narrow effect is that the failure by Mitchell’s solicitors to file a budget in time leaves him entitled to recover only his court fees if he wins; the wider effect, or so it seems, is affirmation of a policy requiring that any procedural defect except the most trivial is likely to result in severe sanctions which, actually or in practice, drive the defaulting party out of the court.

You might like to pause here and go and check the time limits on all your cases. As a rough guide, knock a day off every deadline just in case you miscalculated, treat every order as a peremptory order (see Gordon Exall’s Civil Litigation Brief on this as on anything to do with sanctions and deadlines), check whether the order says “exchange” or “serve on each other”, and make sure you don’t have square brackets in the wrong place in any document. Oh, and check your professional negligence policy. All done? Welcome back. Continue reading

Posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Jackson Reforms, Judges, Lord Justice Jackson | Leave a comment

A reporting hiatus in a bustling eDiscovery / eDisclosure world

You may have noticed that my written output has slowed down a little recently. Before somebody writes in to ask why (they do, you know) it may be worth giving a few lines of explanation. Put briefly, UK procedural developments have hogged the limelight, whilst conference events, big issues like privacy, and the daily flow of press releases keep on coming. Those of us who are interested, in whatever capacity, in developments in electronic disclosure / eDiscovery, in case management, in information governance and in data privacy can hardly complain.

The big subject in the UK at the moment is the fall-out from the Court of Appeal’s judgment in Mitchell v NGN (case report here). Whilst this may appear to be a narrow point to do with a defined penalty for a specific failure, the Court of Appeal took the opportunity to send out much broader messages about the court’s policy on default.

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The result has been a flood of articles and opinions, the majority of which have attacked the judgment. There is plenty to attack, but the blunt fact is that we are where we are. We can criticise the policy direction, but there are cases in hand, case management conferences coming up, and decisions to be made in the climate as we find it.

Trying to write about all this requires a degree of focus and concentration which is quite hard to find as articles by others fly in and as we hear of the first of the post-Mitchell judgments. On the whole, I write for the future and not for tomorrow, and I would rather take my time over my article (articles, as I think it will be, one on the context and one with some practical suggestions relating to electronic disclosure).

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If you want to start catching up with what is being said, turn to a list of relevant articles made on his excellent Civil Litigation Brief by barrister Gordon Exall. There is some good stuff in there, but some inevitable repetition between the many contributors to the discussion. There must be a text analysis app which could identify unique points and produce a summary. Continue reading

Posted in Civil justice, Courts, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure | Leave a comment

Cicayda, kCura and Huron Legal in one trip – 3 – Relativity Fest and Huron Legal in Chicago

This is the third of three posts in which I tell of a trip to Nashville and Chicago in October with my son William. I took part in events or meetings with the three companies named in my title – Huron Legal, kCura and Cicayda. The first part of this three-part post is here and the second is here. This one covers Chicago, where I spoke about predictive coding at Relativity Fest and had a meeting with Huron Legal. We also saw something of Chicago and ate at the Purple Pig.

Ballroom at Relativity FestRelativity Fest is a large annual gathering of Relativity resellers, users and would-be users who assemble in Chicago each year for a mixture of hands-on training, a glimpse of new developments and road maps, and a solid series of educational talks and sessions which are either about the use of Relativity or about the context in which it is used. I was there to take part in the predictive coding panel which closed the conference.

I try and avoid doing closing sessions if possible; many delegates seem to deduct them automatically from their schedule, heading for the airport whilst hapless speakers talk to empty rooms. My heart sank even further when I discovered that the venue was one of those vast ballrooms in which the stage is barely visible on the horizon, compensated for, if that is the right expression, by the projection of each speaker’s face on a giant screen. I needn’t have worried – the room was packed. Continue reading

Posted in Cicayda, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Huron Legal, KCura | Leave a comment

Welcome to Iris Data Services as a sponsor of the eDisclosure Information Project

iris-data-services-logo-e1338417090529IRIS Data Services, a Kansas-based eDiscovery services provider with a world-wide footprint, has now opened in London. I am very pleased to welcome Iris as the latest sponsor of the eDisclosure Information Project.

IRIS was established in 2007 by President Major Baisden and VP of Sales Damon Goduto. It offers litigation support and eDiscovery services both on a per custodian, case-by-case basis and as managed services. One of its clients says of the latter that it “allows us to spend less time managing vendors and litigation technologies and more time doing what we do best, practising law”.

A quick look through the very comprehensive Iris web site shows a focus, above everything else, on data reduction, on project management and on costs control. It offers a range of culling options depending on requirements, all with the intent of reducing the volumes for review. Once culling is complete and volumes reduced, Iris applies some of the best tools in the market – Nuix, Equivio Near-duplicates and Email Threads, Relativity Analytics and Relativity Assisted Review (predictive coding) among others – to reduce volumes still further and to prioritise the documents so that the lawyers see them in order of presumed relevance.

The emphasis on project management and on predicting, controlling and tracking costs recurs throughout the Iris web site – if clients value lower costs (as they obviously do) they value also the absence of surprises which comes from predictions made by people who do this sort of thing all the time. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Equivio, Iris Data Services, KCura, Nuix, Relativity | Leave a comment

Cicayda, kCura and Huron Legal in one trip – Part 2 – with Cicayda in Nashville

This is the second pPlane to Nashvilleart of my account of a trip to the US in October. My son William and I went to Nashville and Chicago where I took part in events or meetings with the three companies named in my title – Huron Legal, kCura and Cicayda. The first part of this three-part post is here. This one covers Nashville and what I said about US and UK eDiscovery / eDisclosure at Cicayda’s un-conference.

So William and I flew to Chicago, stayed a night there and went on down to Nashville. We arrived on a wet Sunday; the entire city seemed to be watching some game or other in a sodden stadium; public museums were closed thanks to the shutdown and we could find nowhere to buy anything resembling the European idea of an espresso. (All was forgiven on that front, incidentally, when we eventually found a cafe with the finest espresso I have ever come across in the US; if that sounds a bit like “the warmest place in Greenland” or “the funniest man in Germany” it is meant to, but it tasted good).

Things brightened up in the evening, when Cicayda entertained all the speakers at a first-rate dinner. I shared a table with the energetic and ideas-filled Eric Hunter, with Jason Cox (Cicada’s CTO and someone I have known since his days as a co-founder of Case Logistics), with Charles and Jane Christian from Legal IT Insider, and with William. Our theme, as I have recorded elsewhere, and unsurprisingly given the company, was how to reconcile lawyers to a future which they could not avoid despite their best endeavours.

You would not expect an un-conference to take place in a conventional conference centre. “Just walk across the Pedestrian Bridge”, they said, taking for granted that one would know what they meant. This was a rather more interesting journey to a conference than going down into the basement in the elevator, as one usually does. Mist swirled around the Pedestrian Bridge (our venue was the building at the far end of the bridge): Continue reading

Posted in Cicayda, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Huron Legal, KCura | 2 Comments

Social media analytics give encouragement to eDiscovery / eDisclosure lawyers

One of the difficulties in trying to persuade lawyers to adopt (or even consider) the use of technology is that they are chary of anything new. Another is that they think that their work is somehow “special”, depending on those hard-earned professional skills and not susceptible to the same solutions as everything else. It helps, perhaps, to see how analytics technology supports and enhances other industries, helping the same people to give better service at lower cost – an enabler of their skills, not a substitute for them.

I wrote recently about tracking social media for eDiscovery / eDisclosure purposes. This article expands on that theme with a look at technology developments which are specifically designed not just to track social media but to draw conclusions from it. Drawing conclusions is lawyers’ work, I hear you say. So it is, but with time and cost in mind, lawyers need all the help they can get to unearth sources which may confirm or undermine their conclusions, or point them towards things they hadn’t thought about.

XeroxXerox is a mighty corporation whose technology interests go much wider than the eDiscovery which is my particular interest. Xerox Litigation Services is but one of the Xerox divisions, one which applies 75 years of Xerox technology research and development to a specific field. There is an obvious link from the predictive and analytical tools which Xerox develops for non-legal purposes through to CategoriX, the predictive and analytical tool which Xerox Litigation Services applies to eDiscovery. Although I use Xerox Litigation Services as the model here, the principle – that ideas developed for one industry have purposes in others – applies more widely.

The Xerox Litigation Services blog continues to provide good reading for those interested in eDiscovery. Recent articles include one about the particular implications of reviewing Mac data on a PC platform, and one on specific regulatory and compliance challenges arising from Dodd-Frank; others cover data security implications for law firms, and the use of technology assisted review. This is a site worth bookmarking for a wide range of eDiscovery topics.

The article which attracted my attention today, however, is not specifically about eDiscovery. It comes from another division of Xerox and is called Xerox tackles big data challenge: social media analytics is great, what should I do with the info? The page name (which is what caught my eye in Google), is Xerox finds true meaning in social media analytics. “True meaning” goes well beyond keywords; when lawyers read documents, they look for “true meaning” rather than particular words, though they may use the words as triggers pointing to meaning. Why not use technology to steer them towards documents whose “true meaning” points them towards the things they are interested in?

The article is about the development at Xerox Research Center of an automated data analytics platform which teaches computers to draw conclusions to evaluate the sentiment of comments beyond the mere meaning of the words. The commercial objective behind this is the ability to route customer comments quickly to the right place and with an appropriate degree of urgency. This requires an evaluation of context as well as the literal content of a tweet, blog post, Facebook entry or other source of comments.

This involves text mining, machine learning and predictive modelling which helps determine whether there is an issue or an opportunity which to be dealt with quickly and by the right person.

What has this to do with eDiscovery / eDisclosure? Well, for one thing, having documents “dealt with quickly and by the right person” is the key to efficient discovery. If the ability to include documents containing the word “project” or exclude those which include “football” is important, what about those whose language plus context indicates a conspiracy or fraud? Those planning to conspire or defraud tend not to use those words in emails – and any half-clever would-be fraudster won’t be using email anyway as newer channels – chat, Facebook, Twitter or LinkedIn – appear to offer less traceable communications. The analytical tools might, incidentally, suggest that some documents containing “project” are nothing to do with the issues and that “football” was a code word for something nefarious.

At a simple level, those same social media pots are as important a source of potentially discoverable information as Word files and emails, and the lawyer who neglects to investigate such sources may find that he or she is in breach of a duty owed to client, opponents or court; perhaps more importantly, he or she may actually have missed some evidence which matters. Given the ever-increasing volumes and the diversity of sources, it becomes important to handle all this proportionately, and any tools which can mine relevant data sources quickly and accurately can help in the battle between completeness and cost. The research being undertaken by Xerox for customer-related items has obvious application for this aspect of discovery. Continue reading

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Social Media, Xerox Litigation Services | Leave a comment

Cicayda, kCura and Huron Legal in one trip – Part 1: setting the scene

I was not intending to go to the US in October. September included a trip to Hong Kong and a holiday. October had several UK engagements in it as well as a conference in Prague. The potential US events – kCura’s Relativity Fest and the EDI Leadership Summit – were just too far apart to sweep up both in one trip and, as one does when confronted by difficult choices, I had chosen to attend neither.

Then Cicayda signed up as a sponsor for the eDisclosure Information Project and announced that they were holding a conference (or un-conference as they called it) called RELEvent in Nashville on 7-8 October – the same days as Relativity Fest in Chicago. The apparent conflict became an opportunity to maximise the value of the flying time when kCura asked me to take part in its predictive coding panel at Relativity Fest and I decided to drop in also to Cicayda’s event. At the same time, Jon Resnick of Huron Legal mentioned in passing that Huron Legal’s senior management team was meeting in Chicago on 10 October; I said I’d look in. What had been an empty week suddenly became a rather busy one. My son William, who does my web site and videos for me, was free that week and off we went.

This article is a mixture of things – an account of the trip, summaries of what I talked about, and something about the very different players who were my hosts, with odd bits of travelogue thrown in. If that is not to your taste, I am sure there are some product brochures, case reports or court rules you could be reading instead. I have split it into three parts to maximise the possibility that you will read to the end. Continue reading

Posted in Cicayda, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Huron Legal, KCura | Leave a comment

Charity mentoring event for legal careers on Wednesday on 20 November in London

A quick one this, because I have only just found out about it. I don’t need to say much, just refer you to this page which tells you all about it.

Prospective lawyers – baby lawyers and students – are invited to attend a charity mentoring event. 25 or so lawyers – the rather impressive list is here – will be available at Lexis House, 30 Farringdon Street, London EC4A 4HH on Wednesday 20 November (that’s TODAY) at 18.30. Music, wine and nibbles are promised in addition to first-rate careers guidance from people with a wide range of practice areas.

The event is to raise money for Anna Verrico’s cancer treatment – read about that here.

These are hard times for prospective lawyers. This is an opportunity to get advice and to meet others who are at the same stage in life as you, and raise money for a good cause at the same time.

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Legal Tweetup in London on Thursday 5 December

A Tweetup is a physical meeting of those whose usual association is via Twitter. A legal Tweetup is such an assembly intended (but not necessarily restricted) to those who have an interest in the law or in some aspect of legal practice, legal technology, legal education or justice.

They have been organised in London sporadically over the years, each one organised by a brave volunteer who manages the invitations and sets up a venue. A combination of living in the provinces and being often abroad means that I have attended only one of them.

The next one is organised by Louise Restell @Louise_Restell and fixed for Thursday 5 December at 6:30pm, probably in Chancery Lane. The invitation page is here. You will see that it is described as a Legal and associated hangers-on Tweetup.

I will not be there – I have a 24 hour trip to Washington which takes me away at just the wrong time.

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Second Annual New Zealand eDiscovery Conference on 19 March 2014

New Zealand is quietly getting on with improvements to its civil procedure rules, supplementing its Discovery Rules of 2012 with a new Electronic Bundles Practice Note.

Andrew King of eDiscovery Consulting in New Zealand has announced the date for the Second Annual New Zealand eDiscovery Conference following the success of last year’s inaugural event. It is 19 March in Auckland.

There is an article about it here. It is being run in conjunction with Ernst & Young and the speakers include Browning Marean from DLA Piper US and His Honour Judge David Harvey.

I had just committed to being in the US in that week when I found about this event, and will not be able to attend – a pity, since New Zealand has been active in the development of good eDiscovery practice, and Judge Harvey is one of the leading judicial thinkers on electronic discovery, electronic evidence, and the use of technology by lawyers and courts. Here is a link to an article which introduces and links to his paper Judging e-Discovery Disputes, which he presented at the Courts Technology Conference 2013 in Baltimore (I aim to write properly about this when the tide goes out a bit).

If I cannot be in New Zealand in March, my consolation is that I may instead get to the other jurisdiction of growing interest in eDiscovery terms, Canada. I wrote recently about the document review centre which Epiq Systems have just opened in Toronto, and that and other factors suggest that a visit to Canada is well overdue.

Perhaps I will make it to New Zealand in the following year.

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Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation Support, New Zealand | Tagged , , | Leave a comment