Rather more than a week’s eDiscovery notes

I don’t publish these round-up posts to a particular pattern – they go up when there is enough to say.

The absence of a timetable means that I do not have to apologise if there is a longer-than-usual interval between them. Delays can become circular, however – new subjects come up, I defer publication to include them, and something else gets in the way. They get longer, with more editing and more links to check and suddenly it’s next week.

February has seen:

My interview with John Tinsley of Iconic

A redaction initiative from Relativity

The Phones 4U judgment on documents held by third-party custodians

Two judgments on the destruction of potentially disclosable documents

The announcement of Relativity’s new initiative with X1

Separating these out into distinct articles does at least mean that this article is a little shorter than it might otherwise have been. It is still long enough, and I have held over some content to the next one.

A long time on a short video

Apart from Court of Appeal judgments, the other intervention was a request to do a short video promoting an event, to which I unthinkingly agreed. We don’t do gabble-into-iPhone videos here (they are not a good advertisement for the proper interviews we do), and it takes a long time to set up my study with cameras, lights and audio, whether for three minutes or something longer.

There being no fee for this, I decided to do it all myself rather than call my son from his eyrie upstairs to help me. Usually, he does all the techie stuff, leaving me to do just a script and the performance before he goes off to edit it. I thought I would also conduct some experiments in how we do these things – camera positions and settings, different ways to capture audio and so on, as well as teaching myself more about the editing which is usually done for me.

All useful stuff for the longer term but, to cut a long story short, it took me two days to produce a three minute video. Meanwhile, the Court of Appeal kept churning out significant disclosure judgments, and interesting stories and articles were rolling in.

Here are some of them:

Relativity at Legalweek(year) – A Data privacy and protection roadmap

I missed the live broadcast of Relativity’s data privacy and protection roadmap. There will, I think, be a catch-up version, and I will come back to it. Here are the relevant tweets collected together.

FTI Consulting expands its RelativityOne Offering to Canada

Over the last two years, FTI Technology has expanded its Relativity managed e-discovery services across North America, South America, Europe, Asia and Australia. Now Canada is added to that list to help organisations face eDiscovery challenges, particularly those arising from increased regulatory requirements. The Canadian Competition Bureau, for example, now has a “cooperation framework” with several other jurisdictions, potentially bringing an increase in the volume, cost and complexity of eDiscovery in response to global merger investigations.

FTI Consulting’s press release is here.

The Evolution of Chat Data in Surveillance

I wrote recently about Relativity’s integration of VerQu, reflecting the growing in importance of chat data, particularly in the anticipation of corporate risk.

There is a webinar on 24 February at 10.00am CT at which Jordan Domash of Relativity and Frank Perrone of VerQu will talk about capturing conversations by monitoring, reviewing and analysing chats in their native format.

Relativity Collect and X1: Streamlining the Global Collection Process

Following the new integration of RelativityOne and X1 which I wrote about here, there is a an online session on 24th February at 6:00pm GMT called Relativity Collect and X1: Streamlining the Global Collection Process.

This session will be given by Greg Evans, Relativity product manager, and John Patzakis, Chief Legal Officer at X1.

5 Things To Know About Ephemeral Messaging Regulation

I reported recently on the launch of the Sedona Conference Commentary on ephemeral messaging. Legaltech News has written about the paper in an article focusing on how ephemeral messaging platforms can help companies meet privacy compliance obligations.

The article includes contributions from Phil Favro of Driven who lead the team which drafted in the paper.

This is an interesting topic of which we will hear more, and in every jurisdiction which requires discovery.

The Admissibility of Social Media Evidence of Insurrection

In eDiscovery terms, one of the most interesting aspects of the events at Washington’s Capitol on 6 January lies in the extent to which participants were happy to share information about their intentions and their activities on social media. When that was supplemented by the the posts of others who were present, a great deal of valuable contemporaneous material fell into the hands of the authorities almost immediately.

Josh Gilliland of Bow Tie Law has written an interesting article about this called The admissibility of social media evidence of insurrection. As its title implies, the article focuses on the extent to which participants’ posts amounted to admissions.

The article considers other cases in which social media posts operate as an admission of intent or of activity.

The events may have been peculiarly American and of their time, but the implications for discovery will go wider.

The use of personal electronic devices at work

The subject of BYOD – Bring Your Own Device (sometimes known as bring your own disaster) has been of concern in the discovery / disclosure for some time.

An article by Simmons & Simmons considers some recent judgments in England and Wales which show that this problem is not going away.

As well as referring to the Phones 4U judgment which I wrote about here, Simmons & Simmons cover two other judgments which relate to the increased use by employees of their own personal devices at work, at the rights of access that employers have (or do not have), and at the approach the courts are taking to disclosure applications related to smartphones.

The article ends with four useful points which employers may care to consider, including the relevant contractual terms governing the use of devices used for work purposes, the idea of using third-party experts to examine such devices, tracking the use of work devices, and the the development of policies and procedures about all these things.

This is a difficult subject, even before you consider the privacy implications. This article is good introduction to it.

Who gets to see commercially sensitive documents during litigation?

An article by Osborne Clarke looks at the circumstances in which parties may limit the exposure of documents which parties are required to disclose in litigation. In Oneplus v Mitsubishi, the Court of Appeal recognised that there are situations where special measures must be taken, for example to prevent certain documents from entering the public domain or being used for some purpose beyond the litigation.

The judge at first instance had divided documents into three levels of confidentiality – Attorney’s Eyes Only (AEO), highly confidential material disclosable only to a limited circle, and ordinary disclosure documents.

The Court of Appeal upheld the judge’s categorisations, while adding that developments in the litigation and changes in the issues may alter the original classifications

There is no guarantee that any particular documents will be given this kind of special treatment in any litigation, and parties should have regard to the possibility of ordinary disclosure of documents which they might prefer to be given special treatment. This may affect the decision to litigate.

5 New Roles the General Counsel Is Expected to Fill in 2021

Last year I interviewed Wendy King, Senior Managing Director at FTI Consulting about various topics, including the role of general counsel. That had been the main subject of a white paper jointly issued by FTI Consulting and Relativity and called The General Counsel Report in 2021: Rising to Today’s Challenges and Building Resilience for the Future.

One of the points made by Wendy King in our interview was that pandemic had expanded the role of general counsel. The “office of no” had become a strategic partner in the business, with a widening range of roles to help the business first survive and then leap ahead from lockdown.

Wendy King has now consolidated her views on this in an article called 5 New Roles the General Counsel Is Expected to Fill in 2021. Emerging risk, employee safety, skills gaps and outsourcing, technology proficiency, and inclusion and diversity are, Wendy King says, all areas for which general counsel have become responsible. Flexibility, empathy and adaptability are all keys to survival for both counsel and their companies.

First vaccination done

The UK has fouled up pretty well every aspect of its management of the pandemic, largely due to the the idleness and incompetence of Boris Johnson, his desire to please the last person who spoke to him, and his Health Minister’s apparent preference for giving procurement contracts to his mates and to party donors over those who actually have experience of the relevant products. I say “apparent preference” because we have yet to have the inevitable public inquiry into Matt Hancock’s conduct of the pandemic.

The vaccination programme, however, has been gone very well, and I have had my first vaccination (AstraZeneca since you ask). There have been no side-effects beyond a couple of days of very heavy sleep – another reason, perhaps, why this post has been delayed.

The organisation of the vaccination day was extremely efficient. Among the many volunteers on that cold morning was a juggler who kept us amused as we queued.



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 Compliance, Compliance monitoring, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FTI Consulting, FTI Technology, Relativity. Bookmark the permalink.

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