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.

I don’t particularly like the World War II Memorial, reckoning that it is exactly what Speer would have built for Hitler had it fallen to him to celebrate victory. It is worth visiting, however, for the bas reliefs set into the walls.

In this one, US factories are already producing war material destined for Great Britain; an elegantly dressed man buys a newspaper reporting that the US was now at war.

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Here are US troops landing on Omaha Beach.

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Here US troops meet up with Russians across a symbolic divide in that short-lived period where we were all on the same side. There are more of these – go and see them.

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Beyond that lies the Vietnam War Memorial, two black walls inset with the names of every US servicemen who died.

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More wonderful still, the Korean War Memorial, ghostly soldiers on alert as they patrol through the jungle.

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Beyond them, the Lincoln Memorial. Then there is the Arlington Military Cemetery, acre after acre of tombstones and memorials, some in regular lines stretching nearly as far as the eye can see, others scattered less formally.

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Monumental, magnificent, and an antidote for those whose vision of the US is derived from its crass advertising, that most widely-travelled symptom of cultural and commercial imperialism. Fewer than 5% of Americans leave its shores to travel, so you will have to go to them.

The sporting event, incidentally, was the Superbowl, in which very large men in thick protective clothing and motorcycle helmets ran into each other between advertising breaks:

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On Monday, Mary Ann flew home and William and I took the train to New York – the fast Acela, which makes up in efficiency what it lacks in comfort. It started and arrived on time and had wifi, shaming most British railway services (yes, First Great Western, I’m looking at you). As we sped north, the landscape suddenly turned white with freshly-fallen snow – pretty enough to look on in the countryside, but tiresome to wade through in New York’s streets.

One of the outputs which I aim to bring back from these events is a set of video interviews. In practice, I cannot fit those in between the panels and the meetings, and William now does it for me – it doubles my capacity, and one of the reasons why none of my articles has appeared yet is that we have been editing the videos. They will appear shortly. A bonus turned up as we prepared to do an interview at the Cicayda booth – the doyen of US eDiscovery commentators, Craig Ball, walked by, fresh from his panel with a large group of Federal judges and I interviewed him:

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I went to two fine dinners on the first night (Equivio and Nuix – I will write about both shortly because both had more than food on the menu), and one each night thereafter (with Guidance Software and ZyLAB). They made up for the day when breakfast came at 4.30pm thanks to a non-stop sequence of meetings, a panel and video interviews (what, I wonder, do the etiquette guides say about the proper course when you are carrying your first meal of the day at tea-time and looking for a table, and someone stops you for a chat?)

I took part in a panel alongside Equivio and organised by Lighthouse about what lawyers must think about when facing an eDiscovery exercise and how they should choose the technology they need to get the job done. I did another one with Nuix and FTI on data privacy and how a properly-planned information governance programme can help mitigate the effects of personally-identifiable information which lurks in every company’s data. Important subjects both, and interesting ones to talk about in such company.

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And meetings – formal ones round big tables, cosy ones in hotel suites, impromptu chats in bars and lobbies and quick handshakes across the space between passing escalators. I missed more people than I saw despite being out in the crowds for the whole show.

LegalTech stops suddenly – it is like running and running then suddenly reaching a wall. The eDiscovery people evaporate and the character of that corner of Sixth Avenue seems to change quite suddenly. We always stay an extra day – I cannot envisage getting straight onto a plane after something so strenuous.

Our journey home took a little over six hours, aided by 200 mph tailwinds. From snow and slush we moved to rain and rising floodwaters, with London more or less cut off from the West (note which way round I put that) by flooded railway lines.

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Much of my time when I got back disappeared in changing arrangements for things which were due to take place last week. Along the way I spent some time in a dental sedation clinic. Sedation is not anaesthetic – you are, apparently, conscious and able to participate in the occasion. The blessing which sedation brings is that you have no recollection at all of what took place. I find this a difficult concept to grasp – the drills whine, the brutality takes place, but you emerge with no memory of it, with the job done and surprisingly little pain; is the usual pain merely the product of memory?

I suggested on Twitter that sedation might be the best way to absorb the Mitchell judgments – that trail of cases which replace old fashioned concepts of justice with the brutal dispensation of punishment for minor errors.

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My Twitter timeline was full of barristers and solicitors reporting on their adventures, lamenting the elevation of procedure over justice and giving each other survival tips. I will spare you the details – look at the blogs maintained by Gordon Exall and Kerry Underwood for that. All I want to convey here is that Twitter has come into its own as a communications medium through what has been a near-crisis in civil procedure. What we witnessed, day by day, was not just procedural fierceness but the breakdown of the cooperation between lawyers which keeps the wheels turning, the clogging of the courts with the applications made necessary by the new ban on agreed extensions and, in place of the certainty which we were promised, an apparent lottery as some judges rebelled against the new regime and wrote carefully-worded judgments which distinguished the case before them from Mitchell.

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A shambles, bad for lawyers, bad for clients, bad for judges and bad for justice. A low point was reached when a judge said at a conference that the flood of sanctions relief applications would die down once lawyers realised that there was no point in making them.

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Half-way through the week, the Master of the Rolls seemed to take a lance to the boil which he had helped to create, signing a practice note which permits parties to agree extensions of up to 28 days without court approval. Within 24 hours it became clear that this common-sense approach applies only to clinical negligence cases. Too late; within hours reports were coming in of courts around the country (except Rhyl, apparently) altering their standard directions to reflect the change and making orders which had provision for consensual variation built into them.

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It is reported that there will be a meeting of senior judiciary in mid-March to discuss possible changes; the MoJ has suddenly announced a consultation round. Will we be saved in time by a brave change of heart which preserves the spirit of Jackson’s reforms without the destructive consequences wished on us by senior judges whose working life has been spent in the rarefied air of big-ticket litigation, away from the real life of everyday disputes?

To those of us used to a procedural regime which changed little from decade to decade, to be witness to an uprising stemming from a misreport of a senior judge’s signature was quite remarkable – as remarkable, in its very different way, as the floods which altered our geographical landscape day by day.

Another theme opened up on Twitter as a solicitor complained about delays in getting a hearing date in the Commercial Court. We have as Lord Chancellor (I was ticked off during the week for so describing the non-lawyer Grayling) a man who was given the job precisely because he had no understanding of the importance of law and would therefore not let respect for it interfere with the task of hacking it to pieces; the Ministry of Justice is staffed now largely by those who have been unable – too dim, too useless, too much like lapdogs to their lying master – to get jobs elsewhere. Grayling rewards his civil servants by blaming them when his statistics are shown to be false.

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Justice is not the only victim: on the civil side as with criminal justice, the easily-proved consequence of the cuts is greater expense; the delegation of functions to shyster outsourcing companies is but one example of more money being spent on poorer services by civil servants who are amateurs in their dealings with companies whose business model depends on cutting costs and on accounting practices which fall just short of fraud.

As the British civil justice system crumbles into petty regulation from the judges, high court fees, under-investment and neglect at the hands of innumerate pen-pushers and ministers, we face the very real prospect that big litigants will choose to fight elsewhere.

One of my meetings in New York had been about the proposed Singapore International Commercial Court.

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I am off to Hong Kong in a few days to take part in a panel about its proposed new eDiscovery rules; whether Hong Kong can capitalise on its position at the junction of English-derived law, US commercial interests and China is not clear, but it seems more likely to draw on London talent than to send disputes here. Dubai offers efficiency. Arbitration in New York seems attractive, not least because of the speed with which hearing dates can be fixed. This is not a time for English justice to be in the hands of a man like Grayling and the useless paper-shufflers at the MoJ.

I talked of all this in an email to a mixed group of people. My sentence

“The combination of high court fees, staff cuts, and Mitchell could finish us as a centre of excellence for commercial litigation…”

…brought me an immediate invitation to work the sentiments up into an 80o-word opinion piece, Treat this post as a draft.

The week ended with a curiosity – Gordon Exall found that a firm of solicitors had copied one of his excellent Mitchell pieces verbatim and stuck it on its own web site without attribution and with a copyright notice at the bottom (albeit one dated 2013, which showed remarkable prescience since it was about a 2014 judgment). As so often, it is Tom Lehrer who provides the lyrics for that with his song Lobachevsky.

Plagiarise! Let no-one else’s work evade your eyes.
That’s why the Good Lord gave you eyes
So you can plagiarise, plagiarise, plagiarise

But be sure always to call it please “research”.

One advantage of writing rag-bag articles like this is that you can be reasonably sure that no-one is going to copy it.

Some of my Washington photographs can be found here.

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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
This entry was posted in Chris Grayling, Commercial Court, Data privacy, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Equivio, FTI Technology, LegalTech, Ministry of Justice, Nuix, Singapore, ZyLAB. Bookmark the permalink.

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