Catching the flood of E-Disclosure and E-Discovery articles

Applied Discovery, Jonathan Maas, The Posse List, EU Data Protection and data privacy, Iron Mountain Stratify, Aérospatiale, WP158, Safe Harbor, Irish eDiscovery, Scotland, Autonomy, FTI Technology, Senior Master Whitaker, Ernst & Young, Goodale v Ministry of Justice, Craig Ball, Multiven v Cisco, Helmert v Butterball, Singapore, Recommind, ILTA, Equivio, Ringtail – oh, and L P Hartley, West Arkansas and Schleswig-Holstein. How much more can one get into one article?

I do not usually do compendium articles pulling together several different subjects under one heading. Rob Robinson of Applied Discovery is the King of the Compendia, and anyone interested in electronic discovery should be on his mailing list, following him on Twitter or catching The Posse List’s reproduction of his weekly list of articles. The UK now has its own list thanks to Jonathan Maas of Ernst & Young whose Bong List has quickly become essential reading – send a message to Jonathan to be included. I generally have the luxury of taking one subject at a time and writing about it at whatever length it deserves, driven usually by what interests me most, and I mine these lists, as well as Twitter, for subject-matter.

This is the first week spent entirely in my office since the beginning of January, and I had looked forward to a leisurely few days following up some of the links and articles which I have been stockpiling on iCyte. The trouble is that they have been pouring in, and when it came to trying to decide which was the most important or interesting, the answer was “all of them”. Providing some brief summaries and links in a single post seems a good idea.

EU Data Protection and Data Privacy

If the first subject out of the hat is EU data protection and privacy, that is in part because I have been writing a white paper on the subject for Iron Mountain Stratify. A large part of Iron Mountain’s work involves trans-border data collections – not just providing the technology, but the legal and practical framework surrounding the task of complying simultaneously with EU restrictions and US discovery demands – and writing about it took me back into the EU Directive 95/46/EC, WP 158, and, on the other side of the fence, the US cases such as In Re Global Power, AccessData v Alste, Gucci America, Inc. v Curveal Fashion and, of course, to Aérospatiale, all of which warrant re-reading from time to time.

You cannot cover the subject without mentioning Safe Harbor, and it was timely to come across an article reporting that the Schleswig-Holstein Data Protection and Privacy Commissioner is demanding that the EU-US Safe Harbor agreement be terminated on the grounds that the US is not enforcing it properly. Safe Harbor has always struck me as one of those “lucky charm” things – there is no harm in using it, but you would not want to rely on it as your only defence.

Iron Mountain Videos

Iron Mountain came up in a marketing context as well, when I came across a YouTube video called Iron Mountain – Our Story which traces the history of Iron Mountain from Cold War origins through to projected space travel. This has in fact been around for some months, but I found it because someone else tweeted a link to it. In a period in which Old Spice has increased its turnover by 107% on the strength of its videos, it is interesting to see a corporate video being passed around on Twitter for its own sake. It led me into the company’s new website which is, of course, exactly what was intended. The UK site is here and its UK E-Disclosure site is here.

The rise and rise of electronic discovery in Ireland

An article by Sharon Daly of leading Dublin firm Matheson Ormsby Prentice, although headed The rise and rise of electronic discovery, suggests that whilst discoverable electronic information is rising, actual discovery, in the sense of a managed process through the courts, has not caught up. The article explains that new ediscovery rules were introduced in Ireland in April 2009 but that there is a problem in ensuring that “all relevant information that the parties have agreed to make available is actually being provided”.

The article tells of a case in which almost 48,000 documents came to light four months into the trial. The judgment “highlighted the difficulties faced when parties fail to liaise at an early stage in order to discuss and agree key elements of the e-discovery process such as scope, search terms and collection parameters” and included a reference to the “most cavalier, reckless attempt by the plaintiffs to comply with their discovery obligations….there was a failure to deal with the issues raised”.

Welcome to the club, Ireland. The article refers to the Jackson report and suggests that what we are doing in the UK is being watched in Ireland. Our recent past, too, is full of stories in which the words “cavalier” and “reckless” would be thought mild as descriptions of the lawyers’ conduct, but we in the UK will happily share with you what we are doing to remedy that, and you can tell us about your ideas and experiences.

Articles by English law firms

We are beginning to see articles written by English law firms which, encouragingly, show that our pending practice direction and questionnaire, and Master Whitaker’s judgment in Goodale v Ministry of Justice, are gaining attention and general approval. An article by TLT, a firm with offices in Bristol, London and Pireaus, headed Senior Master debuts draft e-disclosure questionnaire, picks up the point about the court’s “obligation to control disclosure so as to make it proportionate to the issues at stake” and warns that those who ignore electronically stored information risk costs penalties.

An article by Jane Hughes of Collier Bristow’s construction department  is headed E-Disclosure – The New Draft ESI Questionnaire. Its conclusion is worth setting out in full:

The questionnaire is an extremely useful document and highlights many of the issues that arise on electronic disclosure. There is no reason why it cannot be used immediately and informally by parties. It is particularly useful in cases where either the lawyers or the client have not dealt with electronic disclosure previously as it acts as an aide memoire to the issues that should be considered. Anyone contemplating litigation should consider the e-disclosure questionnaire as part of preparation for litigation to be aware of the obligations regarding e-disclosure that will lie ahead and to enable parties to assess what they need to do and how much it is likely to cost.

The record of the Technology and Construction Court in this respect is (how can I put this?) not unmixed, with one or two of its members thinking that they discharge their duty of active management by “sending the parties away to agree a protocol”. I call that “passive lack of management” myself, and it is good to see TCC practitioners taking the initiative, particularly on voluntary use of the questionnaire.

An article on the Insight Blog carries an interview with Mark Tudor of Matthew Arnold & Baldwin which, one point apart, serves as a good introduction to the subject. It is notoriously difficult to convey nuance in an interview and I doubt that Mr Tudor intended to be reported as saying that “all electronic disclosure needs to be reduced to writing, with documents printable so that hard copies can be included in trial bundles”.  It may well be that the judge wants the trial bundle itself to be printed, but that does not require the printing of everything which has been disclosed.  If you find a judge who insists on having everything printed at whatever cost, the Master of the Rolls would like to hear from you.

E-mail primer from Craig Ball

It is enough simply to point you to Craig Ball’s excellent introduction to e-mail called Traffic Jam without much explanation. See if you can answer the questions at the foot of the article and, if you cannot, call in some help before your next case comes in. One day, perhaps, I will get the opportunity to respond to an unthinking demand for “all metadata” by providing just that. Anyone who asks for it almost certainly does not understand what he or she is talking about and will not have a clue what to do with it.

The forensic investigation process

An article by Grania Langdon-Down in the Law Society Gazette called What litigators need to know about the forensic investigation process pulls together comments from users and providers of forensic collections and investigation services.  The implicit message is that lawyers need a broad understanding of what is involved in different types of collection as well as an idea of what makes one case different from another in this respect. Before issuing an unthinking instruction to “collect everything” it is worth remembering that the expense does not stop with the cost of the bare collection.

Read right to the end for the splendid quotation from one forensic investigator:

People react differently when they have been wronged. Some take the view they want to sue and crush those involved like bugs, others want to hate them quietly. We can assist in getting them to either place.

The real point here is that you may require more of your forensic expert than that he merely copies some data for you. If you never talk to one, you will never find out what else they might do for you – or, indeed, what they might do against your clients. On either ground, it pays to know what is possible.

The American Way with words – Multiven v Cisco

Some US judges have the knack of coming up with expressions which will outlive the substance of their judgments. In Multiven v Cisco, District Judge James Ware weighed in to a discovery dispute with the observation that two of the parties had insisted upon “a review process that guarantees that they will not finish this extensive project in any reasonable amount of time”, namely reviewing large volumes of information without first narrowing the material using search terms (see K & L Gates article and the full judgment linked from it).

The judge engaged in what our rules call “active management” to order, amongst other things, that a third-party vendor be engaged to help. He also appointed a Special Master to resolve future disputes. I  think that Judge Ware and Senior Master Whitaker might get on with each other.

Ringtail Analytics combines FTI’s analysis tools

One of the things on my list for ILTA is to see how FTI Technology has pulled together three analytic tools, Smart Decision, Concept Mapper and Document Mapper to make Ringtail Analytics. I do not think that I can better the description given by Greg Buckles in his article Ringtail Analytics – moving upstream in more than one way. FTI’s own product description includes a link to an introductory video – I cannot think why more software companies do not use this easily accessible way of illustrating their products.

Mind you, the best reference which FTI could get came from a long-term Ringtail user. An FTI tweet read  “FTI Enhances Ringtail Analytics For e-Discovery”. The user re-tweeted it with the comment “certainly does”.

Helmert v Butterball – alleged impossibility of undertaking search

L P Hartley’s novel The Go-Between famously begins “The past is a foreign country: they do things differently there”.  The same appears to be true in West Arkansas where, as
Joshua Gilliland’s Bow-Tie Blog reports, the judge seems to have accepted a party’s contention  that it was “impossible” to search email messages for more than one word in a sentence. Josh put the central point from this case thus:

Lawyers who are new to electronic discovery may assume things are “impossible.”  Moreover, some attorneys argue “undue burden” without consulting with a third-party expert based on the assumption e-Discovery is inherently cost prohibitive.

It happens all the time, and not just in West Arkansas. Lawyers generally like to have some factual basis for an assertion made to the court. They seem quite happy, however, to describe something technical as “impossible” without first asking someone who knows whether that is true or false; they are also relaxed about dismissing something as “too expensive” without having the first idea what the outlay might be. The job of the judge is to question such assertions – he is not necessarily expected to know the answer, but all he has to do is ask for a sight of the estimate upon which the assertion is based.

Autonomy launches Meaning Based Coding for Ediscovery

If some litigation lawyers sometimes seem to be lacking in both intelligence and judgement, litigation software seems increasingly willing to fill the gap. Autonomy has come up with what it calls “Meaning Based Coding” . I have yet to see this (something else for my ILTA list) so I will fall back on the press release which says that the new capability:

watches, learns, and understands how and why attorneys code documents based on content. From the first coding decision, the software understands what information is relevant and can either automatically code remaining documents for a prioritized second tier review or accurately suggest coding for the attorney reviewing the documents. For measuring accuracy, it can also be used to review samples of documents that have been reviewed manually.

And before you ask “how can we trust technology like this” (and you will ask this, I know, because I come across it in relation to Equivio’s Relevance product) ask yourself first how else you will review very large volumes of documents. Ask yourself (and be honest in your answer) whether you trust yourself and your team to make accurate coding decisions consistently, from Monday to Friday, for weeks on end, across multiple reviewers. Ask yourself also how you check the results of this kind of large-scale manual review. Lastly (and here we go back to the point made above about seeking costs estimates) ask yourself what the cost will be of one approach and the other. No, don’t ask yourself – ask Autonomy, who will also, I am sure, be happy to show you how to sample and cross-check the results from its new application.

Singapore conference

InnoXcell, who ran the recent and highly successful e-disclosure conference in Hong Kong, are doing another one in Singapore on 27 and 28 October. I have been asked, as no doubt have others, to give my input into the programme. Singapore is a jurisdiction which is important both commercially and for the development of ediscovery thought and practice, and I very much look forward to this conference, exactly one year on from my last visit to Singapore. Providers with an interest in the region may want to consider sponsorship of the conference.

Round-Up

Running these items together helps illustrate the range of subjects and places which are touched by electronic discovery / disclosure.  There have been other straws in the wind. As I was writing the passage above about discovery in Ireland, an invitation came in to speak at a conference in Scotland in October – major litigation takes place in both places, and both have a discovery obligation which the rules and practice have not caught up with despite the change in the nature and volume of documents. I look forward to going back to Edinburgh.

Also today, I had an email from a lawyer who heard the webinar which I did last week with Recommind about the practice direction and questionnaire and who had some follow-up questions. It is hard to picture a webinar audience: if you make a platform speech, you can judge the effect there and then; if you write about a subject, you assess the reaction by the number who come back for more; with a webinar, you have no feel at all for the reaction unless they make contact; it is always good to talk to people whose work brings them up against the issues which I write or speak about.

I hope to do more of that through the summer, to catch up with those who sponsor what I do, to pick up the web site which I started last summer, and generally to get ready for a new season. There is a good mix already of UK and non-UK conferences or other engagements, and every sign that the mere anticipation of the practice direction and questionnaire has set the more alert firms to thinking how they can use the questionnaire, coupled with Master Whitaker’s staged and iterative approach to disclosure, to come up with a different way to manage electronic documents in litigation.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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