eDisclosure Information Project

Articles on search by OrcaTec’s Herb Roitblat are rare, but worth waiting for. I would much rather point you to his article, and to the articles by Ralph Losey to which they refer, than try and write them myself.

I have just been invited to contribute to a book about a subject which falls within my area of interest and competence, which would involve research and analysis of the kind that my training fits me for, and which would add lustre to my CV. I have declined the kind invitation with some regret. There is one overriding practical reason for this – there are only seven days in the week and I keep meeting the dog queueing for his breakfast on the stairs as I make my way to bed, so I am not sure where the extra hours would come from.

There is also a matter of writing style to be considered – the relatively free and easy prose which I use here and which is my “normal” writing style is not appropriate for a learned or academic work; self-publishing gives me the luxury of not having an editor peering over my shoulder, imposing deadlines, drawing attention to my omissions, and “correcting” my punctuation.

My niche is carefully chosen. I am not a journalist, so I do not generally have to work to somebody else’s timetable. I am not an analyst, so am spared the obligation to research and analyse primary material. The relevant case law involves practical things like breaches of what are, in truth, easily-understood rules rather than complex matters of contractual interpretation or tax statutes. I do not do system specifications, nor am I a user, so I do not purport to undertake the comparative analysis of one software application over another beyond a broad understanding of what each of them does. I am not a computer scientist or an expert in linguisitcs or statistics. My role is to pick out the essentials of all these things and try to dish them up in palatable form to a broad range of interest groups and skill levels, acting as a translator between people whose possibly deep skills in one area might exclude any knowledge of another.

I also have the significant advantage of belonging in a jurisdiction which does not make a religion out of the minutiae of eDiscovery procedure and the relevant technology. One of the reasons why English lawyers can be reasonably sure that the software they use, and the techniques which accompany it, are adequate for their obligations is that most of it has been through the fire of the US Federal Rules of Civil Procedure or the no less onerous requirements of US regulators. One of the consequences of the US burdens is an upward spiral of technological sophistication and related thinking, as technology first meets the challenges and then, because it exists, raises the bar set by courts and regulators and by those who make discovery demands of others. That spawns a high level of jurisprudential and scientifically-based thinking and writing, the existence of which gives comfort to the journeyman lawyer who may not understand it all but who is glad to know that somebody else does. Continue reading →

Legal Technology News annually presents its LTN Innovation Awards for Outstanding Achievement by Legal Professionals in their Use of Technology. This year’s awards, to be presented on the first day of LegalTech, includes one to US Magistrate Judge Andrew Peck as Champion of Technology. The most obvious example of the work which won Judge Peck this title is his article Search, Forward (free registration required), which made a clear and unambiguous case for using technology where it is appropriate to do so to bring down the expense, time and uncertainty of electronic discovery.

My article Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat, reporting on a speech which covered the same ground, was the clear winner in terms of page views on my blog last year, passed on by those who recognised, as all of us did who were present at Carmel, that the ground was shifting under our feet, and in a good way, as he spoke.

His impact, however, goes very much wider than this one speech and article, and lies in countless appearances at seminars and on panels in the US and elsewhere, as well as the commitment to co-operative, proportionate and competent lawyering in his own court – shown most obviously in his William A Gross Construction case with its “wake-up call to the bar”. He also took part in my eDiscovery play in 2011 in both its New York and London versions, a stronger test of judicial character than merely of thespian talent.

What is important about Judge Peck’s role is that he is no tech-head, advocating the use of technology for its own sake. Like the other Magistrate Judges who are well-known in this area, what he says is firmly rooted in Rule 1 FRCP and “the just, speedy and inexpensive” purpose behind the rules.

Another of the LTN awards which catches the eye is the one for Large Law Firm which goes to Australian law firm Mallesons Stephen Jaques, a well-deserved recognition for the firm’s Applied Legal Technology Director, Michelle Mahoney, for her team and for a partnership which recognises the importance of technology in meeting its clients’ objectives.

There is a Reuters article about the awards here.

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The logo of Xerox Litigation Services – XLS appeared here shortly before I set off on last October’s race from continent to continent. I wrote a brief welcome at the time but wanted to find out more about the company’s litigation software and services before writing a fuller article. I have now had the opportunity of speaking to Senior Classification Analyst Amanda Jones, of hearing an excellent webinar which she gave with Cleary Gottlieb, and of meeting up in Oxford just before Christmas with COO Chris O’Brien and with Chris Stephens who looks after client services for XLS in the UK. I am, accordingly, now equipped to write properly about what XLS has to offer.

This post covers what XLS does by reference to its web site, reports on my conversation with Amanda Jones and the webinar, explains the UK set-up and, not least, gives advance notice of a US-UK judicial round-table at LegalTech in New York.

The Xerox XLS Software and Services

You can deduce a certain amount about XLS from the mere fact that it employs a Senior Classification Analyst. The emphasis which appears from the website, from my conversations and from the webinar, is on supplementing the skills of the legal team with a combination of hosted software solutions and professional skills in a way which keeps the lawyers in charge of the process whilst taking away those parts – which will vary from client to client – which the lawyers do not want to do, may not have the skills or equipment for, or which can be done better and at lower cost by delegation to XLS. The recurring theme is one of maximising lawyer input where it counts. Continue reading →

I am pleased to be taking part in an eDisclosure seminar called eDisclosure after Goodale and the Practice Direction in the company of Terry Harrison of Hobs Legal Docs in Manchester on 25 January. The event runs from 6:00pm to 8:00pm and is followed by cocktails and canapés.

This is an invitation-only event. One might be procured by telephoning (0151) 709 1344 or by e-mail to rebecca.wilcox@hobsrepro.com There is a LinkedIn events page covering this seminar here.

I have just seen the invitation, a very fine “stiffie” bearing the logo is not only of Hobs itself but of HSBC, whose regional office is providing the venue, and of HM the Queen – Hobs Reprographics plc is a holder of the Royal warrant.

The eDisclosure Practice Direction PD31B has been in force for more than a year and Senior Master Whitaker’s judgment in Goodale v the Ministry of Justice goes back to November 2009. The practice direction, properly used, is a sensible and practical guide to efficient and cost-effective electronic disclosure; its Electronic Documents Questionnaire is a structured way of exchanging information, whether in advance of the case management conference or subsequently, as a means of finding common ground and identifying points of difference so that the court can make an informed decision where agreement cannot be reached. The words “properly used” are chosen advisedly – the PD is not a weapon, nor is it a device for increasing the burdens of eDisclosure. If you can identify, by transparency and cooperation, which documents are worth having and which are not, using an informed estimate of both their value and the costs of extracting them, then there is time and money to be saved, justifying the investment in completing the questionnaire. This is information which you ought to have anyway on your own side, and collecting it from the other side is immensely helpful.

Goodale remains the best example of a judge taking a practical grip on the scope of disclosure, steering a line between (in this case) the excessive demands of the claimant and the very limited proposals of the defendant. The judgment acts also as authority for the proposition that some documents are more important than others and that a focus on them (whilst preserving anything else which may be relevant) may resolve a case without the need for broad disclosure of material which may be potentially disclosable but which adds nothing to a just disposal of the case, whether by settlement or by trial.

Goodale is the source also of a judicial pronouncement to the effect that the use of technology is vital for reducing the volumes to be reviewed on both sides. This theme appears also in Lord Justice Jackson’s Review of Litigation Costs and in the Practice Direction which expressly requires parties to discuss the use of technology.

Regional firms have opportunities here. The use of technology generally obviates the need for large teams and puts an emphasis on skilful and intelligent use of the rules. Anyone can play – you do not need to be a giant firm in London to be good at this.

It has always been my plan to spend more time in the UK regions in 2012, without decreasing the number of international venues. Hobs Legal Docs and HSBC have given us an event and a venue for a cracking start to the year.

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A report on the future of document review reaches me via Twitter. The spirit which ignores or condemns social media as a business tool matches the spirit which many lawyers show towards modern methods of document review. I yield to no-one in the strength of my prejudices on a wide range of subjects, but one must at least review one’s prejudices from time to time if the fate of one’s business turns on seeing round them.

I have to say that I had not come across the Enterprise Strategy Group (ESG) before Katey Wood joined it earlier this year from The 451 Group. The defect is mine, not theirs, since a glance at their website shows them to be a long-established and broadly-based IT analyst and business strategy company. I do not know if they had any eDiscovery focus before Katey joined them, but they certainly have now.

I was tipped off to the results of their latest survey by a tweet pointing to a blog post by Katey – which is really the first point I want to make here. I get most of my information from Twitter – I do not mean that the sum total of my knowledge is made up of 140 character tweets, but that Twitter points me to articles, brings me news and opens the door to discussions and to introductions to people I might not otherwise meet. Much of what I “know” is acquired by a fairly cursory glance at a day’s tweets, picking up the subjects and themes without necessarily following the links for the detail.

Many lawyers sneer at this – generally the sort of people who once predicted that e-mail would never catch on and who mocked the idea of a corporate website. Business is won by personal connections, they say, overlooking how few truly personal connections any of us can have, and overlooking also the potential for a connection made via social media to turn into a proper business relationship, or the reverse – for a brief meeting at a lunch or conference to turn into an established connection via social media.

Those same people will be conducting document review for eDisclosure/eDiscovery in the way they have always done it, treating rumours of advancing technology, outsourcing and other methods of doing the job more cheaply with much the same disdain as they treat Twitter. There are other overlays as well – of nervousness of the unknown and of protectionism of the splendid fees which have historically come from document review. Continue reading →

The American Bar Association’s Section of Science and Technology Law organised a lunchtime panel session in Washington last week. Its topic was the differences in approaches to eDiscovery in the US and in Europe and how those differences might affect eDiscovery in an environment spanning national borders, e.g. the cloud. Whilst it is not unknown for me to cross the Atlantic to take part in a single conference session, I attended this one by video link.

This method of bringing people together was much touted at the beginning of the recession. The time and cost of air travel and hotels, it was said, would be prohibitive, and we would find by the end of the recession that video provided a perfectly adequate substitute. This prediction overlooked two points: one was that the cost of travel fell like everything else as airlines and hotels struggled to fill their seats and beds; the other was that there really is no substitute for human interaction, whether one to one in a bar or one to many from a conference podium. This one worked very well, and I would happily do more of them, but I am only equipped to talk to a US audience because I spend a lot of time each year in the US, soaking up my subject by talking to the people who practice it, or welcoming them to the UK.

There were two US panellists, US Magistrate Judge John Facciola and Judge Herbert Dixon of the Superior Court of DC. Stephen Mason, General Editor of the LexisNexis book Digital Evidence and a well-known speaker and writer on electronic evidence in many jurisdictions, was the other UK speaker. Bennett Borden, Chair of the eDiscovery and Information Governance Section of Williams Mullen was the moderator.

The video facilities were provided by Squire Sanders in London. Squire Sanders lists 36 offices in 17 countries in North America, Europe, Asia, Australia and Latin America on its website, with 13 languages to choose from when reading it. My only connection with Squire Sanders hitherto is that my photograph appears alongside that of a Squire Sanders partner on the Equivio website, and I know Stephen Goldstein, its director of practice support, who is an eloquent and effective advocate of technology at eDiscovery conferences. Continue reading →

SCL, the website of the Society for Computers & Law, has kindly published my predictions for eDisclosure / eDiscovery for 2012. Every year, Editor Laurence Eastham collects predictions across a wide range of the subjects where technology meets the law, providing one of the few occasions where I am happy for an original article of mine to be first published somewhere other than on my own blog.

One year I will manage to provide them early enough for Laurence to include them in the print version of the SCL Magazine. That has been a consistent source of high-quality articles for many years, and I strongly recommend an SCL subscription to anyone with a professional interest in any aspect of legal IT – subscription information is on the SCL web site.

The current predictions are grouped together. Two of them, Discovery Divinations and Much More and Disputes and Developments, have a direct bearing on eDisclosure. The rest, between them, cover a wide range of subjects.

The same page gives links to the last two years’ predictions. It would be interesting to review them and see how accurate or otherwise we all were.

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An article of last week on my Google+ site (Norwich CPS tests tablet computers as a step towards paperless courts) sounded a cautious welcome for the plan by the Crown Prosecution Service to send out all the documents for criminal cases on HP tablets. I referred also to a similar exercise being undertaken by Australian firm Corrs which, I implied without actually saying so, has probably had rather more experience at managing documents electronically, as well as a more controlled environment consisting only of their own lawyers. I do not know who, if anybody, is helping the CPS on its initiative, but I anticipated difficulties even if the technology was adequately specified and properly managed case-by-case.

It has not taken long for the intended recipients of this technology bounty to react against the proposal, as the Law Society Gazette reports in an article called Firms in revolt over CPS “paperless” plan. In addition to difficulties arising from the technology itself and from the context in which it is to be used, solicitors complain that the change “will simply transfer costs from the CPS to the defence”. A letter from 30 criminal firms to the Director of Public Prosecutions says “We are happy to assist in changes which generate efficiencies, but see no reason why the costs should be borne by us, while we enjoy no corresponding reward”.

It has to be said that the civil service has a fairly unimpressive record for delivering technology to itself, never mind to those with whom it deals. Lack of technology nous is compounded, usually, by that blissful ignorance of commercial pressures which is characteristic of public servants everywhere. They are not good, either, at the human aspects of change, relying on their monopoly status as the only source of publicly-funded work to hand down by diktat changes which deserve a more consensual approach. As a rough and ready rule, when a civil service project is given a painfully clunky name, in this case Transforming Through Technology (T3), it can generally be considered dead before it hits the ground.

I suspect also that this one needs a longer trial than has been allowed.

The proposal is a good one in theory, and one which, inevitably, I support. Change management, however, requires more than merely making an announcement and adopting new methods for what is, as one of the interviewed lawyers said,”a system that we don’t even know will work”.

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You will doubtless recall from your Latin lessons at school that the Romans drew a useful distinction between questions which expect the answer “Yes” and those to which the presumed reply is “No”, the former generally beginning with “Nonne” and the latter with “Num”. The questions “Are you going to give her a call?” and “Surely you are not going to hack her phone?” are subtly different in tone.

The question which comprises my heading clearly expects the answer “Yes”, whether put to a company or to a law firm – general counsel in companies are thought to be seriously concerned about eDiscovery costs, and law firm partners must want to know that they are offering their clients a service which is competitive as well as effective. This turns out to be a different kind of question – the one nobody asks.

The subject comes up now largely thanks to articles by Katey Wood of Enterprise Strategy Group whose Information Asymmetry blog index is here. Three articles – one called eDiscovery and the law firm: great expectations, poor accountability, and two which include the words Is eDiscovery Ignorance Bliss? show for themselves what Katey’s theme is. Where I am a mere commentator, Katey is an analyst, and her assertions about the lack of curiosity shown by both general counsel and external lawyers are underpinned by survey results.

Her blog posts are based on a more formal survey whose results are available only to ESG subscribers; it is called eDiscovery Market Trends: a View from the Legal Department. Dean Gonsowski of Clearwell (now part of Symantec) provides us with a useful summary of the survey in an article whose title, ESG’s Legal Trends Survey Reveals Alarming Inattention to eDiscovery Spending says it all. How can you measure the value which your external lawyers are bringing you if you have no idea what the cost is? Continue reading →

An article about US eDiscovery has messages for UK eDisclosure. The Electronic Documents Questionnaire should be used to reduce unnecessary costs both of the disclosure itself and any disputes about it.

I don’t know what US forensic expert Craig Ball did on his holidays (well I do to some extent, because I was with him in Sydney for part of them), but he has come back in cracking form with a stream of really good articles. One of the recent ones is actually called When Preservation Requests are Wielded as Weapons but it will become known (because it will be referred to often) as the Tyranny of the Outlier. The suggestions which Craig makes apply even in the relatively sanctions-free environment of UK courts because, if followed, they will save clients money.

An outlier is an example which “appears to deviate markedly from other members of the sample in which it occurs”. Craig refers to “outlier opinions” which, in any eDiscovery context, are taken as imposing new or wider preservation obligations which parties follow thereafter regardless of the facts of the case in which they were given. Litigants who make wide preservation demands are not necessarily making tactical moves, but fear that they are failing in their duty if they do not demand “everything”; those facing the demands feel compelled to react with over-wide preservation.

Steps are taken in an attempt to be “unassailable” when what is required is merely that they are defensible. Instead of bowing to opponents’ demands, the proper response is cooperation, with parties “communicating relevant, reliable and specific information about systems, sources and forms to enable the other side to make responsible preservation demands… even if they won’t do so”, conveying quickly what is expected and thus “affording an opponent an opportunity to take the issue to the court”.

I have quoted enough, I hope, to send you to read the article for yourself. The passages given above should make it clear that this advice holds good in jurisdictions which do not have the fear of sanctions which drives so much of the cost of US litigation – an outcome which, as Craig Ball makes clear, is something which is statistically less likely than being struck by lightning, even in the US. Continue reading →

The SCL website is again collecting predictions for the coming year. There is always a good crop relating to eDisclosure / eDiscovery – mine usually arrive just after the print edition has gone to press, and I suspect that will happen again this year.

The first round of contributions relating to eDiscovery / eDisclosure (you will see in the moment why I am emphasising these two labels), from Mike Taylor of i-Lit, Andrew Haslam of Allvision, and Charles Holloway of Millnet. You can read them for yourself, so I will not recite them here. The one which catches my eye, however, is number 6 on Mike Taylor’s list. It reads:

Despite the UK not having a ‘discovery’ process any more many well-known commentators will continue to insist on referring to UK e-disclosure as e-discovery, fuelling the perception that what we do in the UK is identical to that which is done in the US. It is not.

Hmm. The only two commentators who refer to “eDiscovery” as a matter of choice rather than ignorance are me and Jonathan Maas of Ernst & Young (the link, you will note, is to E&Y’s eDisclosure page), and we are both careful to distinguish between references to the Civil Procedure Rules and discussion about the process. I refer to this quite often, most recently in the opening paragraphs of this article which I will not repeat here.

Let’s dismember Mike’s short sentence bit by bit, starting with “many well-known commentators”, and perhaps substituting “commentators of whom you may have heard”, since “well-known” rather over-states it if applied to any of us in this small patch. I wish there were “many” of us – we need much more discussion and, most of all, more anecdotal evidence of what actually happens in correspondence and in case management conferences around the country. One of the many positive things about US eDiscovery is the breadth and depth of the informed discussion about it which goes on. Continue reading →

The London member of business and advisory firm BDO International has taken Digital Reef to support its eDiscovery work. The selection was made through Digital Reef’s UK partner e-Origin.

William Wilkinson, Head of Technology Forensics Services at BDO, said “by processing our eDiscovery work through Digital Reef, we will be able to deal with larger volumes of information in a timelier manner than ever before.”

Digital Reef’s fast processing and analytic capability, with its focus on early case assessment, was not the only reason for the choice. Connectivity with kCura’s Relativity review platform was also significant..

There is further information about this deal here.

BDO is not a firm with which I have had any connection recently. I will leave it a while for the new system to bed in, and then try and get an invitation to find out more about them and their e-Discovery practice.

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For those who missed my original post about this or who do not follow me on Twitter, I have set up a page on Google+ for short notes, mainly about eDiscovery/eDisclosure .

These lie part-way between blog posts and tweets, and may be expanded onto the blog in due course – a full blog post requires a day at my desk, and I am not getting many of those at the moment. This is no cause for complaint – talks to lawyers and meetings with sponsors are core activities – but it comes at a time when the eDiscovery / eDisclosure world is a constant stream of information worth capturing. The Google+ posts are a way of picking up and passing on things which I would otherwise miss.

Yesterday’s entries include a couple of references to an important speech on eDisclosure by Lord Justice Jackson, a pointer to a kCura webinar on computer assisted review and news of the SFO’s new hotline for whistleblowers who want to talk about fraud or bribery. The weekend’s entries covered a range of subjects from how general counsel measure (or more often do not measure) value and efficiency of efforts made on their behalf, a Singapore consultation paper on discovery reforms, a note about uniform data protection law in Europe, some live tweets from ZyLAB Universe 2011, and a cartoon about trying to sell war-winning solutions to people too busy fighting daily battles. There are also trailers for forthcoming articles about predictive coding case studies and for a webinar which I am recording this week with ZyLAB. I don’t know if harnessing Google’s own indexes made the difference, but there were 475 page views on the blog yesterday.

Last night I was one of the speakers at a meeting of the Franco British Lawyers Society at Pinsent Masons. The subject was the Bribery Act and, in my case, the eDiscovery implications which quickly shaded into suggestions about information governance. The other speakers were Barry Vitou of Pinsent Masons, Jean-Francois Denis of Gide and Hervé Chacornac of Siemens – good company to be in on a subject which crosses borders as the Bribery Act does.

Now it is back to London again for the rest of the day. This near-continuous run of away matches ends soon.

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Google has just launched Google+ Business Pages which, unlike the ordinary Google+ pages, allow you to have an identity as a business rather than only as an individual.

That distinction on its own is in fact fairly meaningless in my case, since I and the eDisclosure Information Project are the same thing in public-facing terms. The primary reason for starting the business page is that one can have a proper heading and some photographs at the top, and publish a URL, albeit a rather unfriendly one – mine is https://plus.google.com/101758229793623373564

You also stand a reasonable chance of being included in Google search results, although it is too early to say whether that works well.

Having a business identity does not lose the personal one used to sign up for Google+ in the first place, and you can switch between the two identities. That allows me to use them for different purposes.

The Google+ concept is, of course, a “social” one, designed to encourage sharing. Like many others, I have not yet found this terribly useful – I am not going to abandon Twitter and the 1000+ followers I have there, nor  am I going to duplicate every tweet in Google+ – they turn up automatically in LinkedIn anyway, and most people in my Google+ circles will already have seen the content before I can paste it into Google+.

Most of my written output, in word-count terms, goes into my blog. That is my primary platform and the home of most of my intellectual capital. In reputation terms, it is what I am known for, and in pure business terms its function is to attract as much traffic as possible for the subject of electronic disclosure / eDiscovery. Continue reading →

“My five year old can tell by page three of an Opinion that it is going to end in sanctions”.

The best panel sessions leave you with a one-liner which summarises at least one of the viewpoints. The DoJ’s Allison Stanton gave us this one at the Masters Conference preservation panel as a memorable shorthand for the idea that parties who are punished by the court for discovery defaults generally deserve what they get. Some combination of unconscionable conduct and a more-than-technical breach of the rules makes it obvious what is coming as you start to read the court’s decision.

Apparently different views do not necessarily contradict this idea. To say, as many do, that the fear of being sanctioned is driving ever-bigger discovery exercises is not answered by the assertion that you can always identify a bad case from the judge’s tone on page three. You can tell that it rained by the fact that your visitors are soaking wet, but that does not necessarily help them decide what to wear tomorrow.

The formal title of the panel at the Masters conference was Preservation: Will this be the next change to the Federal Rules? It was moderated by William Butterfield of Hausfeld and comprised, as well as Allison Stanton, Martin Audet of Nuix, Courtney Barton of AOL, John Rosenthal of Winston and Strawn and Paul Weiner of Littler Mendelson. Continue reading →

The mediaeval heritage of Dunster in Somerset includes – or did until recently – cobbled streets and paths. These are now being ripped up because the highways officers and health and safety people from the local council are worried about the risk of injury to people who take insufficient care whilst walking on them. They are being replaced with paving slabs (the cobbles are being replaced, that is – replacing a council officer with a paving slab would often improve a council’s average IQ considerably).

Some people did indeed fall over on the cobbles which were in poor condition and needed attention. They obviously caused difficulty to wheelchair users. Against that, people fall over council paving every day, the cost of ripping up the cobbles was estimated at £100,000, and it is probable that the wheelchair users, like all the other visitors, came because the place was a rare example of an almost perfectly-preserved mediaeval town. An analysis was made of risk and cost, and the safe and easy option was taken despite the destruction of the very thing which visitors came to see.

Contradictory contrasts emerge between the US and the UK in respect of the general attitude to public risk and in respect of eDiscovery risk. The US appears to us to be very relaxed about everyday risk whilst being obsessed to the point of catatonia with eDiscovery risk; the US in turn thinks that the UK approach to eDiscovery – to spoliation, to preservation and legal hold, and to the completeness of discovery – aims at a laughably low standard compared with the stringent requirements of US discovery.

None of these conditions arrived fully-formed, or developed as a matter of policy. The UK obsession with eradicating risk came from nowhere and evolved rapidly without a master plan; few people involved in US eDiscovery see much sense in the absurdly expensive regime which has grown up. It is hard, however, to reverse evolutionary trends like this even where the majority see them as nonsense.

Let us look first at UK attitudes to general public risk, starting with road safety. Putting it as mildly as possible, highways officers are not drawn from the higher intellectual strata. I drove through a county recently whose roads were littered with the highways department’s injunctions to drivers to “Think!”, something as incongruous as having a pig urge you to improve your table manners or hearing Tony Blair say “Let’s be honest” – the mismatch between the command and the known characteristics of the person giving it is obvious. Continue reading →

As my last article explained, I am setting off on a sort of eDiscovery world tour thanks to a coincidence of invitations, each of which was too interesting to turn down. I keep a running list of things which I would like to write about, fed as much by Twitter as by things I am directly involved in. This post records, with the minimum of comment and in no particular order (and with few hyperlinks ‘cos I ain’t got time), the ones which come to hand as I pack my bags. There is a small reward, in the form of a bonus link, for those who make it to the end.

A talk to barristers at 3 Paper Buildings

I put this first, partly because that is where it belongs in the timeline, and partly because it points up two important things –  that the UK is no less important to me because I spend a lot of time abroad, and that the erosion of solicitors’ traditional work is perhaps closer to home than they imagine.

The introduction to 3 Paper Buildings came through Andrew Haslam, who had worked with a member of chambers on a case involving electronic documents. As we have done before, Andrew and I split the subject-matter to reflect our respective primary interests. I talked about the rules and about how astute and pre-emptive use of both judicial discretion and technology could cut down disclosure volumes. Technology is shifting the emphasis from rows of people reading documents to intelligent application of thought. Increasingly, in big cases, it is barristers who find themselves running case management conferences and engaging with the court. There is a real opportunity to use the CMC as a means of focusing on the client’s objective and on the court’s objective, and on how the combination of technology plus brain could achieve them within the rules. Andrew Haslam, in a carefully constructed presentation, took them through the classes of technology which exist, stressing that the “right” technology meant that which was right for this case. You do not necessarily need the really clever stuff, but you need to know that it exists and how it could be used. At the least, you need relationships with a couple of providers to whom you could turn.

Surreal, you say. Barristers don’t want to do discovery! Well, this lot got the point at once, not just for litigation, but in connection with regulatory and similar work in which they are engaged. We got some good discussions going, and positive feedback after over two hours of presentation. Anyway, it is no more surreal than the snow which blanketed Middle Temple Gardens and blew past the windows on a warm September afternoon – a Christmas commercial, apparently. Continue reading →

The three words beginning with “B” in my title are a random selection from the top of my running list of things to write about.  They all have a connection with eDisclosure / eDiscovery which is not necessarily obvious (barristers and disclosure? Surely solicitors deal with that?).  The list might equally have read “Pennsylvania, Peck  and Model Order”, which would have been equally random and equally discovery-related.

I rarely do compendium articles which sweep up a lot of subjects. A mass of interesting things, however, has turned up about eDiscovery in the same week as I prepare for a run of events – seven of them, in six different countries in five weeks, with another shortly afterwards. Each of them requires at least an outline to be written; they involve liaison with others; not least, they require bookings to be made and some system to be created which ensures that I turn up in the right country, on the due date and with the right set of notes. I leave for the first of them tomorrow.

The result is a long article which picks up as many as possible of the strands which have been flying by. Google Plus will one day be a very good tool for this sort of thing. At the moment, my G+ audience would be about 10 people against the 200 or so page views per day on this blog and over 900 Twitter followers. A compendium article has the side merit of showing in one place how many different components of business life are touched by eDiscovery – which is in fact the theme of at least one of my talks. I break the article into two – this one about the journeys and their relevance to eDiscovery generally, and a second which flicks through the incoming material. Except where I am referring specifically to the UK rules, I will stick to the term “discovery’ and try and ignore the faddy word “disclosure” which came into our rules in 1999 in the curious hope that the label change would improve matters.

My conferences page shows what the events are and has hyperlinks where relevant (hyperlinks are the bane of my life and I will not repeat them all here).  In summary, I am doing a panel on early case assessment with Digital Reef in Washington and then going straight to Dublin where I am doing a UK and common law round-up with Senior Master Whitaker, and a US updates session with Browning Marean of DLA Piper US at eDiscovery Ireland 2011. After part of a weekend at home, I go to Berlin to give a speech to IQPC’s conference, on worldwide eDiscovery developments and why they matter for EU companies. I am back home for three days before going to Sydney for the Nuix Exchange, to join Senior Master Whitaker, US Magistrate Judge Andrew Peck, Craig Ball, David Cowen of the Cowen Group and others at an event which promises to be both intensely educational and extremely pleasurable. Continue reading →

A parallel emerges between the management of Britain’s railways and the way the civil justice system is run. In both of them, the occasional star project cannot hide the fact that the rest is run-down, neglected by government and inadequate both for its users, for its role in the economy and for the fulfilment of fundamental duties of the state.

I made it to only the last session of the Legal Week Commercial Litigation Forum, held at St Pancras Renaissance Hotel last week. St Pancras itself is a triumphant example of a building whose modernisation has repurposed both the hotel and the station for the 21st century whilst keeping the grandeur and style of its high Victorian origins. The Eurostar trains leave here for Lille, Paris, Brussels and points south, a gleaming, modern and highly efficient transport system looking wholly at ease in the refurbished red brick Gothic of the 1868 station.

Although you seem to appreciate, or at least to tolerate, my occasional geographical, historical or literary allusions, there are in fact parallels between St Pancras Station and the delivery of civil justice in England and Wales. St Pancras and Eurostar may gleam and work efficiently, but the rest of Britain’s rail system and stations are run down, overpriced, badly managed and wholly unsuited for the demands placed upon them. Successive governments have shown no interest in how the railways ought to work for the benefit of those who use them and for the economy generally, and have milked them for profit. If you can afford to travel first class, then you may be reasonably sure of a seat at least, but the only trains which seem regularly run to time are the international connections out of St Pancras. The focus on those who can pay, on the occasional star project, and on international business, does nothing to improve the tired infrastructure, the declining quality of service and the ever-higher prices. Continue reading →

Whilst I was at ILTA in Nashville in August, I moderated an eDiscovery discussion with Steve Akers, CTO of Digital Reef and Peter Mansmann, CEO of Precise Litigation Technologies. Digital Reef has now edited our discussion down into three short videos and published them on its blog under the heading Preparing eDiscovery Data for Review. The three sections appear under the titles An Introduction, Strategies, and Tools and Techniques.

I used the introduction to draw attention to the gap which so often appears between the objectives – the clients’ objectives and those of the court – and the discovery work done by the lawyers in purported compliance with those objectives. US sanctions cases tend to involve some permutation of breaking the rules, failing to produce documents, and less than open behaviour vis-a-vis opponents and the court. It is no less a failure of duty when they disclose too much – throwing piles of irrelevant materials at opponents is often used as a tactic, but it is more often done, I think, because no one applies their mind to the proper scope of discovery. It is not a binary option – disclose it all or get sanctioned; there is a middle ground.

The same is true in the UK, even if we lack the risks which US-style sanctions bring. The courts in both jurisdictions are coming under pressure to hold down the costs of discovery. The paradox is that those who complain about it – the clients – are the very people who could control it, partly by the way they manage information on their own systems, and partly by negativing their lawyers’ assumption that they want them to fight for them in every last ditch. The cost of procedural infighting, when added to a lack of knowledge about what are, after all, the clients’ own documents, can add significantly to litigation costs which do not bear at all on the issues, the merits or the substantive arguments.

The first of the three videos is largely taken up with my observations of this kind. In Parts 2 and 3 I pick the brains of two very experienced players in eDiscovery and invite them to suggest how we might reduce costs and focus on the things which matter.

In what may appear to be an unrelated episode, I recently recorded a webinar for Virtual LegalTech with Bill Belt and Daryl Shetterly of LeClairRyan and with Heather Bryden of Capital One Bank. Its title was Unbundling Litigation: Selecting and Using eDiscovery Counsel, and we focused on the benefits of using specialist lawyers to handle eDiscovery alongside the merits counsel.

The connection is that I am taking part in a panel session on Day 1 of the Masters Conference in Washington along with Steve Akers and Bill Belt with Shawnna Childress of Navigant as moderator. The title is Early Case Assessment (is it working?) and I think it likely that some of the themes from the earlier events will recur in the ECA panel.

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