eDiscovery from New Zealand to Ireland

Posted on September 7, 2011 by Chris Dale

That’s a rather random pairing of countries, you might say from looking at my heading.  We are all in favour of cutting down the number of your blog posts, you might go on, but there are better ways of doing that than randomly shoving apparently unconnected jurisdictions into one article.

One connection between Ireland and New Zealand is that both jurisdictions require discovery of documents for litigation. Another, a subset of the first, is that they are both late to the eDiscovery party – of the relevant, common law countries, only Scotland has positively decided (in a report last year) that the wheels of civil justice can keep turning without any  recognition in the rules that the management of electronic data and documents requires particular attention. The rest of us to a greater (the US) or lesser (Hong Kong) extent have either tried to address discovery problems or have at least recognised that there are problems which go to the heart of delivering justice. One policy consideration here is that justice which no one can afford is justice denied. Another is that some dispute resolution business is portable between jurisdictions, and it is the high-value litigants who can often choose where to fight.

New Zealand has a draft practice direction almost ready to roll out early next year.  The New Zealand Bar Association Annual Conference last week gave over part of its time to a session on electronic discovery. My source, as before in relation to New Zealand, is the NZ eDiscovery Blog run by Andrew King of eDiscovery Consulting. In his latest post Raising the Bar – a look at the NZBA Annual Conference, Andrew summarises his own presentation, and refers in positive terms to a talk by Judge Harvey. I met Judge Harvey at the recent Electronic Litigation Conference in Singapore, and introduced him in turn to Senior Master Whitaker and to Vince Neicho of Allen and Overy, all three of us members of the working party which drafted our recent EDisclosure Practice Direction.

Here is another example, then, of opportunities to share ideas between those who are at different stages in the game. New Zealand has the enormous advantage of watching the rest of us develop our ideas, and we in turn will learn from their experiences. If you ask me why I spend so much of my time on aeroplanes, this is part of my answer. Continue reading →

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Singing from the Same Hymn Sheet

Posted on September 6, 2011 by Chris Dale

Craig Ball is a US lawyer, forensic expert and entertainer – that last word probably does not appear on his CV, but  you will gather just from the title of my article Craig Ball Entertains at CEIC 2011 on Computer Forensics for Lawyers that he uses this third skill to pull the other two together.

Craig somehow manages to combine good writing and an apparently endless list of speaking engagements with actually getting his hands dirty dealing with the technical end of electronic discovery. He now has a new home for his long-standing column Ball in Your Court, whose most recent post What are we waiting for? summarises succinctly the arguments against the unthinking use of keyword search and the arguments in favour of having “the courage and wisdom to lead the way” in using more sophisticated technology.

He is kind enough to credit me with prompting his post.  The reality is rather simpler – anyone immersed in this subject, with the benefit of hearing the leading judicial thinkers (see my articles Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat and Senior Master Whitaker raises the eDiscovery stakes for unprepared litigants), of reading papers like those referred to in my articles, of listening to those who work in this area, and of seeing the technology, must surely arrive at the same conclusion. Craig heads his article What are we waiting for? I used capital letters in my Judge Peck article (the first time, I think, that I have not relied on the words themselves for emphasis) to say IT’S NOT GOING TO HAPPEN to those who expect judicial blessing for specific technology. The message to lawyers is the same: it is your case, your reputation and your client’s interests at stake here. Aren’t you even going to look at some of this technology? What are we waiting for?

I repeat often something which US Magistrate Judge Paul Grimm said in a podcast which I did with him last year. Technology will always outpace us, he said, and someone must have the courage to go first. His message applies equally to lawyers and to judges, and was not an invitation to be reckless or daring. There is now enough authoritative and properly-sourced evidence as to the deficiencies of keyword searches on their own – see again the papers referred to in my Judge Peck article – and no shortage of reminders that the duty of lawyers and judges alike is to take whatever course will bring down the time and costs of litigation. That changes, and is changing fast. We should at least know what the options are, should we not? What are we waiting for?

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Adoption and the perception of the courts’ demands

Posted on September 6, 2011 by Chris Dale

What connection can there be between the formal process of child adoption and eDisclosure / eDiscovery? Adoption is in the UK news at the moment as a result of a report by Martin Narey, former head of the Prison Service and now the ministerial adviser on adoption. The report adds flesh to the bones of the common perception that social workers responsible for placing children for adoption are erecting unnecessary barriers by their resistance to trans-racial placements. Most of those who wish to adopt are white; most of the children needing to be adopted are non-white. If social workers see it as essential to match the race, colour and culture of children and adoptive parents, then the scope for alignment is very small. They claim, apparently, to be trying to meet the courts’ expectations as to evidence. You may see the connection between these two apparently unrelated subjects.

To most of us, the matching requirement is not merely stupid nonsense but wicked nonsense. The inevitable result is that people desperate to adopt are made to go through multiple layers of the hoops and hurdles which are the specialist subject of low-grade public servants whilst children are left in care and deprived of the love and attention which they desperately need. Social workers dealing with children attract public attention only at the extremes – either by neglecting a child who should be removed from its parents or by destroying perfectly good families because some overbearing pocket tyrant takes against the parents on often spurious grounds. There are many fine people in between, but there are also many whose political correctness, bent towards social engineering and pipsqueak bloody-mindedness make them erect barriers against what is supposed to be their objective.

That identifies already two characteristics in common between the social worker dealing in adoption and the lawyer handling electronic discovery – if there is anything worse than the lawyer who, whether deliberately or through incompetence, fails to give adequate disclosure, it is the one who gives too much; there are many lawyers whose obsessive compliance with a formalised perception of the rules makes him or her plod remorselessly through the discovery process at great expense without any regard to the true objective. That brings us to a third parallel, one identified by Martin Narey in The Times yesterday. He said this: Continue reading →

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How Bribery Act-compliant is UK Plc?

Posted on September 6, 2011 by Chris Dale

I have been sitting for a while on one of those legal updates which the New Law Journal produces from time to time for which they gather a group of experts round a table and report their discussion in a high-quality pamphlet.  One, headed Enforcement Matters – How Bribery Act-compliant is UK Plc? must inevitably have a technology expert at the table. That role was taken by Drew Macaulay, Business Development Director at First Advantage Litigation Consulting in London, whose photograph and quotation appear at the top of the article.

I held onto this one not merely because I and most of the potential audience have been away, but because it seemed possible that the Serious Fraud Office would choose to time its first prosecution to catch our attention as we all got back to our desks. That is not as cynical a motive on their part as might appear – there is good reason why Drew Macaulay’s quotation “… will [the SFO] be given the bodies to get the job done?” comes at the top of the article: the prosecuting authorities have small resources relative to the task they have been given. We have all been waiting with interest to see where the SFO strikes first, and it would be foolish of them to blow the publicity value of the first charges by announcing them in August.

Much of the discussion at the roundtable was about the SFO’s first potential targets, with some of the betting money going on SMEs who might “hope they will fall beneath the regulator’s radar”, and some on a company domiciled outside the UK but doing business within it – both entirely plausible as examples with the widest ripple effect.

In the event, none of us accurately predicted the nature of the first “victim”, nor was the prosecution brought by the SFO as expected, but by the Crown Prosecution Service. The CPS has announced that it is bringing charges against Munir Patel,  a court clerk at Redbridge, Ilford, who faces a charge under Section 2 of the Bribery Act 2010 for requesting and receiving a bribe intending to improperly performed his functions. Patel also faces charges for misconduct in public office and perverting the course of justice. Continue reading →

Posted in Bribery Act 2010, Discovery, eDisclosure, eDiscovery, Electronic disclosure, First Advantage | Leave a comment

ILTA 2011 – the end of the beginning? We’re just getting going

Posted on September 1, 2011 by Chris Dale

Gaylord exteriorI am back from the annual conference of ILTA, the International Litigation Technology Association, in Nashville, Tennessee.  The original draft of this post said that I was “just back” but (as more than one correspondent has reminded me) time has gone by without any post from me about it or about anything else. Catching up after two back-to-back conferences in opposite corners of the world plus an ever-busier Twitter stream and a few other things have kept me amused.  I will in due course do a couple of posts about the serious stuff at ILTA and I will point you to summaries by others of the product and company news which, however interesting and important, can be dealt with from my desk if it still seems interesting or important by the time I get to it.

Despite the best efforts of the PR people, I don’t cross the world to shut myself up in dark demo rooms or to hit the social scene. The breathless prose of the press releases offers little incentive; I don’t drink much, don’t party more than formal politeness requires, don’t really appreciate most corporate nights out unless they involve a table and a decent menu, and can’t stand shouting above noise. Why do I go each year?, someone asked.

As I have said in an earlier article, I had some formal reasons for going – I sat on a panel for Thomson Reuters and moderated a video session for Digital Reef. The real value, however, lies in ad hoc and informal conversations. Within a few hours of arriving, for example, I had lunch with Amir Milo and Warwick Sharp of Equivio, a conversation with Herb Roitblat of OrcaTec, and an extended early-morning coffee with Howard Sklar of Recommind; those who followed the predictive coding furore of a few weeks ago will note that these companies were in the front line trenches of that energetic debate. I could, in theory at least, ring up any of them for a chat at any time but it is only at ILTA that there is an opportunity for these impromptu discussions.

So what?, you say. You bumped into all your mates and had a nice chat. How pleasant to be able to do that in a grand hotel somewhere hot and call it “work”. Well, it is enjoyable, but it has a serious purpose as well. This post is largely anecdotal and aimed at giving the flavour of the event in the hope of encouraging you to go next year.

Carrying messages

Gaylord AtriumThe advertised pitch for the eDisclosure Information Project is that I carry news and views about eDisclosure / eDiscovery between judges, lawyers, clients and those who supply into the market. Some of that is done by sitting on panels, taking part in webinars and other one-to-many exercises; sometimes it involves reporting things which deserve a wider audience such as Judge Peck’s speech at Carmel and those of Singapore’s Chief Justice, of Lord Justice Jackson, and of Senior Master Whitaker at the recent conference in Singapore. Sometimes, however, it lies in one-to-one conversations which you can’t have if you just sit at home writing blog posts.

Talking to Equivio’s Warwick Sharp is like standing beside an expert at a pheasant shoot. Up go the arguments, bang goes the gun, and down they come lifeless to the ground. My role is to be the labrador who retrieves them. Our lunch discussion on that first day was about the arguments advanced against using sophisticated technology like predictive coding – not specifically Equivio’s  product but any of the high-end software applications which take input from senior lawyers on a subset of documents and use it to make relevance and other decisions about the rest. The only plausible argument against the use of such applications, if you discount the self-interest of  lawyers who make their money from setting large teams to read all the documents, is that there is as yet no court decision which expressly approves of the use of such technology.

As Judge Peck noted at Carmel, there is no decision approving the use of keywords either, and both he and Master Whitaker in Singapore addressed this primary objection. Warwick Sharp instead rattled off a list of uses for predictive coding which needed no judicial approval – QA of your own results and a quick assessment of your opponents’ discovery were amongst them. I did not need to go to Nashville to hear this, but there were many who had gone there for just that purpose.  Later that day, I met in quick succession two people whose role within their firms required them to marshal just these kinds of arguments for the benefit of their lawyers, and I passed on what Warwick had said more or less verbatim. That alone justified being there, and you only really get that kind of opportunity at ILTA, where the mix of educational and social events, coupled with the informality and relative leisure which differentiates ILTA from the frantic pace of LegalTech, encourages this kind of discourse.

The venue

Gaylord CascadesThe Gaylord Opryland Resort covers 56 acres; it has 2881 guest rooms, 220 suites, an atrium 150 foot high and 4.5 acres in extent plus a second atrium of an acre which comfortably swallows two waterfalls, tropical gardens, a restaurant and a bar; the resort has 15 restaurants in all, a river, and several hundred thousand square feet of exhibit hall and conference facilities. There were people whom I knew to be there amongst the 1200 registered delegates at ILTA whom I did not see at all.

You wouldn’t find me checking in here for a holiday, but the Gaylord resorts are perfect for an event like this, provided that you don’t mind a 20 minute round trip between the conference centre and your room, as I had. The big events  – the opening party, the  big sessions and the final dinner – fitted comfortably into the cavernous rooms but there are plenty of quiet corners for conversation. Continue reading →

Posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Equivio, ILTA, KCura, Legal Hold, Predictive Coding, Recommind, Thomson Reuters | Leave a comment

The Guardian, the Rolls Building and me

Posted on August 22, 2011 by Chris Dale

“Fancy you being quoted in Communist paper today!”. Thus read an e-mail received as I was boarding the plane for Nashville. The reference is to an article published in Saturday’s Guardian headed Rolls Building court complex can make London ‘global legal centre’, where  a quotation from an article of mine does indeed appear. The quotation is accurate, I gave my permission for anything I had written to be used, and I stand by it. It is, unfortunately, preceded by a sentence which does not represent my view and which could not be inferred from anything I have said. I will come back to that in a moment.

First, though, why should my correspondent be surprised that I am quoted in a “communist paper” (his words, not mine) like the Guardian? It would be fair to say that my views and those of the Guardian’s readership do not overlap very much. I am not altogether sympathetic with the idea that any problem can be solved by raising taxes and throwing a few thousand more civil servants at it; I don’t buy the idea that society is improved by a focus on rights without a concomitant emphasis on responsibilities; I deeply resent the fact that any sensible discussion about differences between people – differences of colour, race or gender – is stifled by immediate accusations of racism, xenophobia or sexism from people too intolerant, and too convinced of their own rightness to allow the subject to have an airing at all; I strongly disapprove of the idea that the state has an over-riding role in protecting us from our own decisions, even before considering the moral and intellectual shortcomings of the politicians and all those low-grade little people who purport to tell us what to do. I once got into serious trouble with a young idealist for using the expression “the Guardian-reading public” as shorthand for a whole class of wet, woolly thinkers whose claimed liberalism is in fact a severe de facto form of oppression.

That does not stop me reading the Guardian from time to time – it is wrong to dismiss views which are different from one’s own without at least trying to understand them, even if “the Guardian-reading public” does not reciprocate the courtesy; besides, the paper itself is more thoughtful than most of its target audience is about these things.

There is one area in which the Guardian has an increasingly important role – the quality of its law reporting. The Times used to be pre-eminent at this, but one rarely finds anything about the law worth reading in The Times now. I am not sure whether this is because they frig around with the layout so much that whole chunks disappear from view or whether the law has been edged out of the paper by its recent emphasis on celebs, fashion, sex and other people’s emotional problems. The Guardian, meanwhile, has gone from strength to strength on legal matters, both in the print and electronic versions and on Twitter. Continue reading →

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ILTA 2011 comes to life at Nashville

Posted on August 21, 2011 by Chris Dale

ILTA 2011 is slowly coming to life downstairs, but the Gaylord Opryland Resort and Convention Center is so large that I am getting my information about it from tweets rather than from my own observation – there could be a London-style riot going on at the other end of this complex and you would not know it. I will put up some photographs in due course, though you really need the wide-angle lens which I left at home to get any impression of this place.

I’m not convinced that I could accurately have pointed to Nashville on a map before planning this journey and, indeed, since I don’t plan my journeys any more (my blessed wife does it for me) the journey just involved following instructions. BA gave me what they call an “involuntary upgrade”, with that curious implication that one might decline the opportunity to sleep horizontally, be offered food which is actually edible, and have access to a power outlet.  Changing terminals at JFK was a doddle thanks to the inter-terminal train, and it is worth recording (because one often hears differently) that the airline and security staff were welcoming and helpful, with apparently spontaneous smiles and offers of help if one looked at all uncertain.

On the small plane from JFK to Nashville I came across Charles Christian of the Orange Rag, the Legal Technology Insider and the American Legal Technology Insider, Rob Lancashire of digital dictation company BigHand, and legal technology writer Joanna Goodman. Charles introduced me to Rob Lancashire as “an expert on digital dictation” which is rather like introducing an occasional car driver to a Formula 1 engineer as an “expert on cars”. I am merely a user, whereas Rob Lancashire is BigHand’s managing director for UK legal and professional services. Continue reading →

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Three new sponsors and HP buys Autonomy – all in a week’s work

Posted on August 20, 2011 by Chris Dale

This was never going to be a relaxing week, sandwiched as it was between a conference in Singapore and ILTA 2011 in Nashville, Tennessee. At least I had written all my Singapore articles by the time I landed at Heathrow at dawn on Monday, with their themes of judge-led litigation processes, judicial intolerance of eDiscovery unreadiness and South East Asian business and educational ambitions.

ILTA is a fixed entry in the calendar of anyone interested in litigation technology. On the surface, it is a more relaxed event than most of the others, taking place in high summer, in casual attire rather than suits, in a resort, and spread over five days. A lot happens there, however, quite apart from the fact that Nashville is a long way from Oxford, England or, indeed, from anywhere – the journey time is the same as to Singapore with the added excitement of having to change terminals at JFK.

Like certain other things – conflicts between my sponsors, the revolting coffee on aeroplanes, and the unwanted attentions of legal PRs – these things go with the territory which I have staked out for myself, and are a small price for involvement in a global business which is worth billions, which I am passionate about, and which is occupied by interesting and likeable people. it is also a young industry, with the opportunity which that brings to make the weather and not merely to report on it.

What makes that possible is my involvement with those companies whose logos appear on the right-hand side of this page. Between them, they cover the full range of software and services used for electronic discovery in every jurisdiction in which discovery is a relevant concept. Their sponsorship does more than provide the time to write and the opportunity to go where the action is. It also gives me a direct line to the senior people in the industry, and the ability to get involved with the development of rules and the connections with judicial thinkers, things which do not of themselves create a viable business.

The addition of three new sponsors in one week may be a coincidence; I think in fact that it tells us something about the state of the eDiscovery and information governance market and the direction in which it is going. Continue reading →

Posted in AccessData, CaseLogistix, Clearwell, Discovery, eDisclosure, eDiscovery, Electronic disclosure, EMC, Equivio, ILTA, Summation, Thomson Reuters | Leave a comment

You collect the loot and a forensic expert will collect the evidence

Posted on August 19, 2011 by Chris Dale

One would hope that every lawyer engaged in litigation is aware that specialist experts exist who can collect data from computers in a manner which will stand scrutiny in a court. Actually, I have no such hope, since I come across lawyers who have either never applied their mind to this subject or who think that forensics is a deeply mysterious black art, or perhaps part of the syllabus at Hogwarts.

The collection of data in a forensically sound manner is only a part of of skills and services available from a forensics expert, the criminal courts are not the only place where you might need such skills, and computers are not the only source of evidence which is digital. Many civil and, indeed, matrimonial, cases require such evidence; data involves more than documents; and computers are far from the only source of digital material. Last, but not least, you may need the service of such an expert to disprove an allegation made against a client as much as to prove a case.

it may not be immediately obvious that there is a connection between the recent civil disturbances in the UK and the work of a forensic expert. You may be interested in an article published this week in the Manchester Evening News and headed Hi-tech methods that will catch Manchester rioters about the work which CY4OR is doing to help the police identify those responsible for the disorder. That involves enhancing CCTV images as well as collecting data from the telephones and computers of those suspected of involvement. Nor does the investigatory work end with the suspects’ own devices – social media like BlackBerry Messenger or Facebook, as well as eBay, are possible sources of information relevant to every aspect of alleged involvement in the riots, from encouraging others to join in through the actual events and on to the tracing of stolen  goods.

CY4OR have their own article about this here. One hopes that riots will not be a regular component of a lawyer’s work, but high-profile incidents like this serve as a reminder of the very wide range of evidence which can be collected – or rebutted – by the use of a forensics expert.

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Huron Consulting goes with Nuix

Posted on August 16, 2011 by Chris Dale

I rarely pass on press releases without some accompanying context, focusing on a few big articles rather than many snippets, but this one headed Huron Consulting replaces Autonomy with Nuix caught my eye as it was published.

Nuix provides software for electronic discovery, investigations and for information governance. Huron Consulting Group provides a range of business consulting services including eDiscovery and related services under the banner Huron Legal. Huron recently acquired the well-known UK-based eDiscovery service provider Trilantic.

Nuix is a pure software company, making its applications available either in-house or through services providers like Huron and many others. To have someone in Huron’s league say of Nuix that “there really was no competition” is a good endorsement to have.

Both Nuix and Huron will be at ILTA 2011. Nuix is offering a “$1,000 giveaway” to those who follow it on Twitter and tweet the phrase found on their competition page. Judging by the number of hits I have found for “Nuix” whilst searching Twitter for a link to the Huron article, Nuix is gaining many followers with this idea.

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A court-led eDiscovery initiative in Singapore

Posted on August 16, 2011 by Chris Dale

I thought I had done with Singapore for a bit, at least until October when I am back there for the InnoXcell eDiscovery conference on 31 October.

A news item on the Asia Legal Business Online website seems worth passing on, however. Headed Singapore: Electronic Discovery Initiatives Launched in Legal Sector, it reports that a steering committee, including representatives from the courts and other interested bodies, including law firms, has been set up to investigate various ways of improving document review, case management and the exchange of discoverable documents.

I will keep in touch with this interesting development and let you know more as things develop.

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Conferences coming up: ILTA and the Legal Technology Leadership Summit

Posted on August 14, 2011 by Chris Dale

With Singapore behind me (well almost, I am still here as I write this, in the BA lounge, waiting to fly) I can turn to the next two events in the eDiscovery calendar.

Next up is ILTA 2011  at Gaylord Opryland Resort in Nashville, Tennessee from August 21 – 25. The website still shows that registration remains open. Anyone with an interest in legal technology should be there for ILTA’s unequalled range of educational sessions, vendor displays and the opportunities to kick ideas around with people from law firms, providers and others. I will be there, and look forward to meeting as many as possible of those who are kind enough to read this blog.

September 6-8 brings the Legal Technology Leadership Summit 2011 at the Ritz-Carlton, Amelia Island, Florida, presented by Above the Law  in conjunction with the Electronic Discovery Institute. The latter is an important resource for serious and practical thought about the issues raised by electronic discovery. The rest of the world may not appreciate every aspect of the US approach to discovery, but we can certainly learn a great deal from high-level conferences like this. Continue reading →

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Rapporteur rounding up the Singapore Electronic Litigation Conference

Posted on August 14, 2011 by Chris Dale

It was a privilege to be asked to be one of the rapporteurs at the end of the International Electronic Litigation Conference in Singapore. Bryan Ghows of UniLegal LLC spoke to one group and I the other, with ten minutes to round up the proceedings. Unusually for me, I actually wrote down in advance what I intended to say, and I give it here as the finale to my series of articles about this excellent conference:

It is proper, at an occasion like this, to address by name or title all the most important people in the room. There are many of you and I have only ten minutes so I will instead simply address “Kind hosts and welcome guests”.

I should say that listening to speeches during lunch is one of my pet hates at these conferences – you have just got a good flow of conversation going and then have to break off and listen to someone speaking. I tried to get out of it by suggesting to Senior Assistant Registrar Yeong Zee Kin that an audience of this calibre does not need to be told what they have just heard, but he said it was proper and it is there in the programme. There is, perhaps fortunately, not much time, so I will pick what seemed to me to be the most lasting points. Continue reading →

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Senior Master Whitaker raises the eDiscovery stakes for unprepared litigants

Posted on August 14, 2011 by Chris Dale

You are busy, I know, and here is another 3,000 words to read. I will repeat here at the top the paragraph with which this article ends, as a taster for what Master Whitaker said in his plenary session speech at the Singapore International Conference on Electronic Litigation.

If Master Whitaker’s opening premise was that businesses are concerned about the costs of discovery, the real concusion from what he said is this: however important the role of judges, whatever is provided as rules, practice directions and court guidance, and however good the technology becomes, the key lies with the clients, both in the way they keep – and destroy – their documents, and in how they select and instruct their lawyers.

Senior Master Whitaker’s talk was headed International Developments in Electronic Discovery. In introducing him, Nicholas Peacock of Herbert Smith referred to Master Whitaker’s other formal title, the Queen’s Remembrancer. That role, he reminded us, was established in 1154; how interesting, he said, that the oldest judicial post in England and Wales should now be at the “cutting edge of bringing technology into the law”.

It is conventional to be polite to your hosts on such occasions, but Master Whitaker clearly meant every word of his opening. Singapore, he said, was a member of a select club of jurisdictions requiring common-law discovery, and punches above its weight in electronic discovery, as appears both from its practice direction and from various decisions. He praised its “forward-looking Chief Justice” (see my post Opening a world class agenda at Singapore Electronic Litigation Conference for a report of the latter’s speech). “Majulah Singapura”, he said, this being Malay for “Onward Singapore”, the nation’s motto. He paid tribute to Senior Assistant Registrar Yeong Zee Kin for his part both in advancing the court processes in Singapore and for his role in organising the conference.

He was, he said, proud of the connection between the Queen’s Bench Division and Singapore which, he said, would continue for as long as he was Senior Master. Continue reading →

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The Singapore Electronic Litigation Conference comes to an end

Posted on August 13, 2011 by Chris Dale

The International Conference on Electronic Litigation came to an end here in Singapore yesterday. I have already given you the core statistics – more than 350 participants from 36 countries. I am staying on until Sunday – as on my recent trip to Hong Kong, the exorbitant airfare for a return on Friday or Saturday far outstrips the cost even of this fairly grand hotel. I don’t mind that, really. I am more likely to get my conference reports written if stuck on my own here than at home.

Lord Justice Jackson and Vince Neicho of Allen & OveryBrad Mixner of Litigation Edge Pte Ltd and Global EDD Group has been keeping the official conference blog which you will find here, reproducing my posts as well as writing his own, with some photographs in addition (the rest of us were banned from taking photographs, as I have noted before, and the one here of Lord Justice Jackson and Vince Neicho of Allen & Overy is taken with thanks from the official blog).

As you will have gathered from my earlier posts, the conference was not just about electronic discovery but about case management and the whole court-led end of the litigation process. A recurring theme in my posts about the event is that the court really does lead here in relation to the rules, the development of court processes and the wider economic implications for Singapore of becoming the leading jurisdiction in the region. Continue reading →

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Lord Justice Jackson in Singapore: Piloting Civil Justice Reforms

Posted on August 11, 2011 by Chris Dale

The best judicial advocates of proportionate electronic discovery emphasise that, however significant the costs and other implications of discovery, they are but a part of a wider duty to make justice affordable. That duty is distributed – it lies with the judges charged with managing cases and those who devise the rules and procedures; it falls on lawyers and on their clients whose justice is at stake; it is part of the duty of government. Lord Justice Jackson touched on all these in a speech in Singapore which began with Plato and Aristotle and, precisely 45 minutes later, came back to them. The occasion was the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law.

I do not usually rush out reports of speeches on the day of their delivery, preferring a more leisurely approach with reflective comment. This is a straight transposition from my notes, with little critical or or analytical thought applied.

The evidence in Aristotle’s day, Sir Rupert said, fell within a manageable compass. The instant communications now critical to business were not a boon in all respects. They remain in permanent form to be studied by those with the time and motive, subjected to a full and painstaking analysis by lawyers, and generating “prodigious and sometimes terrifying costs”. Continue reading →

Posted in Case Management, Court Rules, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Lord Justice Jackson, Singapore | Leave a comment

Opening a world class agenda at Singapore Electronic Litigation Conference

Posted on August 11, 2011 by Chris Dale

The first morning of the Electronic Litigation Conference organised jointly by the Supreme Court of Singapore and the Singapore Academy of Law has yielded so much of interest and importance that I am in danger of losing it if I do not note it up straight away. Quite apart from anything else, I am due to give a summary to the judicial and other VIP delegates and guests at lunchtime tomorrow, and must stand back from it a bit to be ready for that.

We started being impressed before the first speaker had opened his mouth. A large room is packed with rows of seats, with judges and other VIP speakers and guests at the front and the rest behind. So far as I could see, every seat was taken. The organisers are courteous but firm, imposing a degree of discipline which keeps us in our place. The rules include a ban on photography, so my posts will be missing their usual illustrations.

The proceedings were opened by the Honourable Justice Lee Sieu Kin, a judge of the Singapore Supreme Court and chairman of the conference, who told us that we had over 350 guests and speakers from 36 countries. The original plan, he said, had been to focus on electronic discovery, but it had become clear that other related technology developments, including the use of social media, warranted places in the agenda. He introduced the Honourable Chief Justice Chan Sek Keong, President of the Singapore Academy of Law, to give the opening address. Continue reading →

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Jumping Jurisdictions: EDiscovery from California to Singapore

Posted on August 10, 2011 by Chris Dale

I am sorry about all those words from my brief stopover in the UK between California and Singapore – 11,100 of them, 1000 per day and one word for every mile flown to get there and back. What is alarming is that none of those posts formed part of any backlog – this is all current stuff sprung either from the Carmel Valley eDiscovery Retreat or from other things which have developed in what is supposed to be a quiet month.

It is, I know, more helpful to spread them out and it is possible, in fact, to go away and leave articles to publish themselves. I did not do that because many of them cross-link and you can only link to a published article. Equally, I could publish them from Singapore, which is where I am now, but the agenda here is full enough of new material without having to deal with what will by then be old stuff. Exciting times, represented graphically on my blog stats by three spikes reflecting interest in recent topics.

I am in Singapore for the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law. This was originally to have been a discreet affair hosted in the Supreme Court building, but so many people signed up for it that it has moved to the Marina Mandarin Hotel. Continue reading →

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Final round-up of the Carmel Valley eDiscovery Retreat

Posted on August 8, 2011 by Chris Dale

My reporting of the excellent Carmel Valley eDiscovery Retreat has been rather dominated by my post Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat. Frankly, if that had been the only session it would have justified my 11,000 mile round trip. There was plenty more, however, both on the agenda and in the discussions at this pleasant and relaxed venue.

The judicial panels were excellent. At first sight, it seems rather odd to have two judicial panels on successive days with the same moderator and participants. The second one was the only event on Day 3, not an easy time to attract an audience at a venue which offered many alternative attractions. It was a tribute to the panel that the second show attracted a good audience.

Diane Barry was the moderator and the panel comprised US Magistrate Judge Andrew Peck, US Magistrate Judge Elizabeth Laporte, Martin Quinn from JAMS and Judge Hon. James L. Smith (Ret.), also from JAMS.  JAMS, for those who don’t know (I did not) is the largest private alternative dispute resolution (ADR) provider in the world. You have to work quite hard to find that JAMS is an acronym for Judicial Arbitration and Mediation Services, Inc.

They covered a lot of ground over the two sessions, pursuing interesting lines as they came up rather than sticking to a pre-structured agenda. I propose simply to pull out sentences which catch my eye from my notes, without necessarily attributing them to a particular person. Continue reading →

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A Flock of Articles on Computer-Assisted Document Review

Posted on August 8, 2011 by Chris Dale

What tells the swallows to gather on the telegraph wires before starting their migration southwards? One has to ignore, I think, the possibility that the telegraph wires are part of their communications network. Perhaps the birds all use an avian version of Twitter. Perhaps, indeed, that is why Twitter is called Twitter.

The subject comes up because last week saw a number of articles about computer-assisted document review after what I described recently as A Lull in the Predictive Coding Battle. These do not appear to be copycat articles (except this one, which is expressly reactive to the rest) and each of them must have been written in ignorance of the fact that others were also writing on the subject. There appears to be no common springboard, and they are comment articles rather than combative ones by participants. Perhaps everyone needed to write one last article before pushing off on holiday and this was thought to be an easy subject.

That conclusion does not in fact do justice to the quality of some of these articles. For those of you who do not have Twitter permanently open on a dedicated screen, it might be helpful if I draw attention, without great commentary, to the more interesting of them. I should say, incidentally, that I do not by choice do two big articles on the same subject within a a few days – there is plenty of other good technology out there, other areas of eDiscovery / eDisclosure of significance and much to write about that is not directly about technology at all, such as the certification debate. The real theme here, and the reason why these articles are worth capturing in one place, is that they encourage investigation into what is right for your cases, which may be something far less sophisticated than the predictive coding technology which gives this spate of articles its label.

If I include my own one first, it is because of a comment which came from a reader and not because it needs another airing so quickly. It was called Judge Peck and Predictive Coding at the Carmel Valley eDiscovery Retreat and its timing followed the speech it reported. Reactions included an e-mail comment which, whilst approving of the article itself, reckoned I had omitted one important subject. Lawyer adoption of discovery technology is slow, my correspondent said, because lawyers earn a great deal of money from manual review and have no interest, in any sense of the word, in investigating ways of reducing the chargeable hours.

I left this subject out of my article mainly because it formed no part of the speech which I was reporting. I don’t mind being discursive (you can go elsewhere for the short, snappy stuff) but some articles must stick to their headlined themes, and this was one. Besides, once you start looking at what are colloquially called “vested interests” (“colloquially” because the true meaning of the term has a narrow legal sense) where do you stop? Every change in business practices brings winners and losers. If you talk up technology solutions, you appear to be running down outsourced document review (you are not, or, at least, I am not – it is the informed choice which matters); reduce discoverable volumes and you hit hosting fees; reduce lawyers’ chargeable hours and – well, they have to find a better way of offering value to their clients. That is how business evolves. Continue reading →

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The Value of eDiscovery Self-Collection Tools

Posted on August 8, 2011 by Chris Dale

I mentioned in a recent post that membership of Guidance Software’s Strategic Advisory Board brought the pleasure of seeing developments work through from concept to production to adoption. One of the most exciting of these was Guidance’s EnCase Portable. The subject comes up now because Sean Doherty in Legal Technology News wrote an article headed Compare and Contrast: eDiscovery Self-Collection Tools which, as well as mentioning some of the players, including  AccessData, Guidance Software and Pinpoint Labs, gives a good summary of the value of tools like this and an explanation of when and how they are useful.

Unlike Sean Doherty, I am not in a position to do a “compare and contrast” piece on these products. I do, however, know two of the companies well because Guidance and  AccessData are sponsors of the eDisclosure Information Project.  I have suggested before that these tools have a place not merely in the hands of professional collections experts but within companies and law firms. Not every collection warrants the attendance of an external expert: an HR department may think it necessary urgently to collect data from an employee’s laptop; a lawyer may be interviewing someone whose potentially relevant laptop is right there in front of them.

The names of these products are pleasingly apt –  Guidance Software’s EnCase Portable and AccessData’s AD Triage neatly summarise their functions in their names. It would not take much for a company or firm to compare these leading products and to equip someone with the skills to use it

They have another benefit as well. Small and inexpensive they may be, but they offer a convenient and accessible way of illustrating to lawyers and others what kinds of information can be found on and taken off a computer. This can be an eye-opening experience for lawyers who might otherwise assume that information of this kind is lost or otherwise unavailable. Looked at from one point of view, this is positive skill to have; looked at more negatively, the failure to realise that potentially crucial evidence can be tracked is potentially negligent when mainstream tools of this high capability are available at low cost.

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Consider document review services as well as technology

Posted on August 8, 2011 by Chris Dale

The recent dominance of predictive coding and other forms of computer-assisted review in these pages and elsewhere reflects as well as reports on the growing interest in this kind of technology. It is also inevitable that the discussion has been led by US thinking on the subject because that is where most of the discussion happens.

I have tried in my own articles to walk a line between giving an uncluttered view of the predictive coding debates and emphasising that this is merely one of several options  which must be considered by those charged with the management of large volumes of electronic data. This type of technology is not for everyone nor for every case and, as Greg Wildisen of Epiq Systems said in my discussion with him (see Strong eDiscovery behind the Q2 numbers at Epiq Systems) there is often a balance to be struck between the time and cost considerations when considering human and technology input.

The UK does not have the vast armies of contract lawyers which are common in the US. Those who have a lot of documents for review, however, ought to be aware that there is a thriving and competitive market offering document review services in the UK to be considered alongside, or more usually in tandem with, a technology solution.

I have already mentioned Epiq Systems’ document review service in the article referred to above. I was in the London offices of Huron Legal recently. When I first went there, for the office opening, the review pods had just been set up. Now there were two teams of reviewers hard at work and I was told that this had been the case since the service was launched. Hobs Legal Docs, one of the few UK providers still with a strong paper-handling division, necessarily provides manual coding to go with it – unlike most electronic data, scanning paper requires manual work for mere identification quite apart from any decision-making implicit in the term “document review”. Continue reading →

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Strong eDiscovery behind the Q2 numbers at Epiq Systems

Posted on August 8, 2011 by Chris Dale

I have made it clear in an earlier article that analysing the detail of company accounts is neither one of my strengths nor my interests. One has to pay some attention, however, to an announcement which reads Epiq Systems announces 2011 second-quarter results led by eDiscovery operating revenue growth of 96%.

Epiq Systems acquired Encore Discovery Solutions on 4 April 2011, so this quarter’s figures are complicated, on the one hand by acquisition costs and on the other hand by a new revenue stream. I will leave you to read the figures for yourself, but I draw attention to the emphasis given in the notes to “the strength of Epiq’s organic growth across the heritage eDiscovery business”. Epiq was doing well anyway, in other words, even without the Encore business. When the two strands are added together in a strengthening eDiscovery market, the results are impressive.

As always, I am more interested in what we can deduce about the market generally than in any one provider’s figures, and more interested in what the company’s senior people say in conversation than in the necessarily stripped-down accounts notes. I pick Epiq in part because it  provides a balance to the spate of articles from me and others whose focus has been the sophisticated technology of predictive coding. I have another long article coming up on that, but it is important to emphasise (as I have done in my articles) firstly that not every case needs a sophisticated technology solution and secondly that the key lies in understanding the range of options available. Epiq’s IQ Review process and its proprietary review tool DocuMatrix offer predictive coding by the incorporation of Equivio’s Relevance product. They also, however,  have a document review service and, with the acquisition of Encore, open the door to a wide range of applications – an antidote, therefore, to the idea that it is predictive coding or nothing. I will have more articles to similar effect shortly.

I spoke to Greg Wildisen, Epiq’s International Managing Director, and he went straight to this point. He did not give me the details, but a recent case handled by Epiq had required that a population which grew to 80,000 documents over the short life of the project had provided a good example where the balance of time and cost considerations had required a concomitant balance of human review and technology. Neither would necessarily have done the job on its own within the budget and timeframe, but a consultative approach and good project management had brought in the right resources at the right stages to get the job done. This is a point which goes wider than just Epiq – someone must have an overview. Continue reading →

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Excellent source on New Zealand eDiscovery reforms

Posted on August 7, 2011 by Chris Dale

New Zealand is a common law jurisdiction requiring discovery of documents in broadly the same way as the UK, Australia, Canada, Singapore and Hong Kong and, at a little more distance, as the US. It is not necessarily a disadvantage that it has only now turned to considering what rules and procedures are necessary to manage electronic discovery.

The best source of information on New Zealand developments is the blog run by Andrew King of E-Discovery Consulting in Auckland. I knew Andrew a little when he was a law firm litigation support specialist in London, and met him again in Sydney last year when Senior Master Whitaker and I brought him up to date on the then developments on the eDisclosure Practice Direction and Electronic Documents Questionnaire which have since come into force in the UK.

I give you no analysis of my own, for now, but simply refer you to two posts by Andrew King. One, dated 14 July, is headed Final Draft of the New NZ Discovery Rules Released, which summarises the issues which had been addressed, and referred readers to the draft rules. Andrew has now produced a useful summary headed NZ eDiscovery Reform – a Global Context which does what the title implies and reviews developments in other jurisdictions.

I await developments in New Zealand with interest as part of my general self-imposed remit to keep up with developments in all the jurisdictions which are focusing on court-led eDiscovery. When the opportunity arises, I hope to go to New Zealand to find out more about what is happening there. Meanwhile, Andrew’s blog is a source to bookmark.

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Drawing conclusions from Guidance Software’s Q2 2011 financial results

Posted on August 7, 2011 by Chris Dale

I do not claim any expertise in deciphering trends from the quarterly figures published by the leading players in the eDiscovery industry. I know what I am good at, and the analysis of corporate accounts is not on the list. I shy away from the subject for other reasons as well:  if one comments on one company’s figures then others might expect theirs to be reviewed; if you report on good figures then you should equally draw attention to disappointing ones.

Occasionally, however, one can draw conclusions from the narrative part of the accounts which say something about the industry generally, and I do occasionally draw attention to the figures for this reason.

If I have a particular affection for Guidance Software it is partly because it was the first big player in eDiscovery to back the eDisclosure Information Project. I have done many conference sessions with Guidance over the years and enjoyed them all, both for their own sake and for the evidence of commitment to market education which they bring; I have for three years sat on its Strategic Advisory Board, having the pleasure of tracing progress from those discussions through to product launches and other developments. Guidance Software also has links to other players including a new connection with kCura, the latest sponsor of what I do.

There are other reasons, also, for an interest in Guidance Software’s figures: sitting as they do at the front end of the eDiscovery process, their numbers say something about the state of the industry generally; in addition, sales of network collection software to the higher end of the corporate market suggests that companies are taking seriously the compliance and investigations benefits of a standard collections process as well as the requirements of litigation.

The Q2 report itself is here. The highlights include a 5% increase in overall revenue against the second quarter of 2010, with product revenue flat but services and maintenance revenue up by 11%. The statement by President and CEO Victor Limongelli draws attention to the launch of Version 7 of EnCase Forensic, to Guidance Software’s position in the Leaders’ Quadrant of the Gartner Magic Quadrant for eDiscovery Software, and to the addition of 65 new customers on the EnCase Enterprise platform, bringing the total to more than 1,000 customers, a figure which, I am told, includes over 60% of the Fortune 100.

Any company willing to forecast year over year growth of 8% to 12% (that is, between $99 million and $103 million) in this very public context at the half-way stage in the year obviously has confidence not only in its future but in the prospects for the market generally. I asked Victor Limongelli for his observations on this; he said “Customer adoption is accelerating – we have added more new customers in the first half of the year than we did in all of 2010.  Every company needs to address unstructured, unmanaged data, and we are seeing more and more of them doing something about it.”

Not everything which is collected goes through to being processed, analysed and reviewed – that is part of the point of having an easy way to collect data which you might need as opposed to merely that which you must collect. Nevertheless, the corollary is that those who sell review applications and offer software and services need to see an increase in collections to underpin their own growth. These figures therefore look promising not just for Guidance Software itself but for its rivals in the collections space and for those who sell downstream solutions and services.

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Ducking the eDiscovery Certification Battle

Posted on August 5, 2011 by Chris Dale

I am not sure that I can face the battle which is presently raging in the US about certification of electronic data discovery professionals. It is a subject on which I have written before, coming down, in general terms, against demands for a professional qualification and the concomitant growth of a certification industry.

There is no doubt that more (by which I mean better) skills are needed by those who purport to offer services and advice in this most critical and expensive component of litigation and other document-heavy activities. The objections come under various headings: a certification requirement is a barrier to entry in a market which desperately needs recruits; many of those recruits will be people who move sideways from other areas – people with skills we need but who will have not have formal qualifications; a certificate is valueless in the absence of some objective standard and it is hard to see who will set the standard; the whole process tends to monopoly and there is a risk that one big provider will control the new generation’s thinking; analogy with nursing training in the UK suggests not only that we lose good entrants but that we breed a new tier of busybody bureaucrats more focused on their career plans than on the profession; and so on.

Since I last wrote about this, the certification industry has grown as predicted and “Organisations offering to certify electronic data discovery professionals are sprouting up faster than dandelions in May grass”. This forceful way of describing the situation comes from an article by Patrick Oot with the uncompromising heading eDiscovery Certification: Sham exams? Patrick’s opening sentence continues “…and preying on the members of our legal community who may be the least able to afford the ‘services’ and may not realise how flimsy the certifications may be.” Continue reading →

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Zubulake comments and my comments about her comments

Posted on August 2, 2011 by Chris Dale

Laura Zubulake has commented adversely on my post Zubulake in her own words at Carmel. Someone whose name appears in the title of a post is obviously entitled to be heard in response and I must equally obviously reply, albeit with the slight fear that a tennis match will result – I would not want Ms Zubulake to take more time out of her presumably busy ediscovery consultancy practice to engage in debate with some Englishman of whom she has not heard. She has gone on to chase me to publish her comments, so presumably missed my clear statement that I was on holiday – not the only part of my blog which she seems to have missed. If she had read to the end of that post and skimmed the 872 eDiscovery posts which preceded it, it would have been clear what my mission is and why I was disappointed that the eponymous heroine of Zubulake v UBS had not used her name and status to fight for a more proportionate approach to ediscovery.

Disappointment should not be confused with naivety. Equally, Zubulake is not fair on herself. As well as disregarding my context, she has either ignored my genuinely-meant compliments or positively rejected them. My lament was not about what she did say, and certainly not about her presentation of it, but about what was left unsaid. Are we really content with a post-Zubulake world in which, for all the developments in technology, in the rules, and in thinking by the likes of Sedona (all of which she mentioned), the ruinous legacy of her victory remains the standard? One feels that she might have mentioned what I said about that, since that was what my article was really about.

It would be fair to say, I think, that Ms Zubulake saw my article as being all about her. In truth, I had bigger fish to fry. One can give her credit – as I did more than once – for fighting her own battle and winning, whilst nevetheless regretting the wider consequences of her victory. My historical and other parallels seem not to her taste, but I will risk another one: 1940 Britons could admire Rommel’s Blitzkreig attack to the Channel ports whilst being deeply concerned at the implications of its success.

Zubulake’s victory, great though it was for her, was the moment that proportionality nearly died in US civil litigation, and the moment when form and proceeding-with-the-procedures edged out common sense. From that moment parties have had to behave as if every opponent was guilty of concealment whilst defensibly exaggerating their own efforts. We have to make a stand against that, to reach a compromise between formal compliance, completeness and cost, and between all of them and the real objectives – the clients’ objectives, the “just, speedy and inexpensive” objective in FRCP Rule 1 or the overriding objective in the UK. Continue reading →

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Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat

Posted on August 2, 2011 by Chris Dale

US Magistrate Judge Andrew Peck’s keynote speech at the Carmel Valley eDiscovery Retreat was one of the clearest statements yet by a judge that the use of new technology like predictive coding is an acceptable way to conduct search in appropriate civil litigation cases. Though necessarily limited to US courts in terms of direct influence, what he said applies in any jurisdiction requiring electronic discovery. What are you waiting for?

I know what you are waiting for: you think that one day a judge will deliver an opinion or a judgment (depending on your jurisdiction) which says in terms that a particular kind of technology is approved by the court. I know that, because I keep reading articles which say that predictive coding has not been approved, and such statements make sense only if there is a realistic expectation that approval might both be forthcoming and binding outside the court and matter in which it is given. Perhaps you have a mental picture of the occasion: “It is the opinion of this court that the use of predictive coding is a proper and acceptable means of conducting searches under the Federal Rules of Civil Procedure / Civil Procedure Rules / [Insert name of local rules] and, furthermore, that the software provided by [insert your favourite vendor here] is the software of choice in this court”.  Perhaps the judge will go on to praise the car in which he or she drove to work, offer an endorsement for the floor polish used in the court, and give a quick puff, as it were, for his or her favourite brand of cigarette. IT’S NOT GOING TO HAPPEN.

There are various reasons for this, apart from possible breaches of judicial ethical rules. How was the application used? By whom? For what kind of case? What alternatives were or should have been considered? What did it cost and what did it save?

There is something pernicious in this waiting for the impossible. It means that many lawyers and their clients are not focussing on what modern technology can do for their cases but on what some notional judge might think. They are not informing themselves, developing faith in their own judgment and backing that faith with their fees and their actions, but making do with the old way of doing things until a judge has said it is all right to do something different.

One of my plans for a summer which seems to have gone already was to go back through my accounts of the many judicial panels and webinars which I have heard and seen in the last twelve months to pull out the many positive references to technology made by respected judicial figures on both sides of the Atlantic. I might yet get to this, but Judge Peck’s speech at Carmel covered all the necessary ground. Continue reading →

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Back from Carmel and North California

Posted on July 29, 2011 by Chris Dale

I got back from San Francisco this afternoon after nearly two weeks away. Mary Ann (Mrs D) and I went first to the excellent Carmel Valley eDiscovery Retreat a new venture organised by Chris La Cour.

The star turn there was US Magistrate Judge Andrew Peck, both as a keynote speaker on the subject of predictive coding and as an informed and informative panellist, to say nothing of his useful interventions from the floor. Also on the panel was US Magistrate Judge Elizabeth Laporte, increasingly a voice to be heard on the balance which is called proportionality. Back in San Francisco, she showed us her court, an interesting supplement to my knowledge of the US judicial system.

There were other excellent sessions and plenty of interesting people to talk to. My reports will come out over the next few days, together with some comments received on an earlier post and my reaction to them. It seems likely that Chris La Cour will repeat the show next year. If he does, I recommend that you go, for the atmosphere as much as for the learning. Continue reading →

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Laura Zubulake in her own words at Carmel

Posted on July 25, 2011 by Chris Dale

Whilst it was interesting to hear Laura Zubulake’s behind-the-scenes account of the case which made her name, stories of old battles do not necessarily equip us for the war which follows.

As I recounted in my last post, I have been at the Carmel Valley eDiscovery Retreat, miles from anywhere in a remote spot in northern California. Apart from the rural location and the more reflective pace which that brings, little distinguishes this event from the many other conferences which I attend. There is a finite range of subjects, and many of the speakers, the vendors and the delegates are people one sees at other places. One does not necessarily want innovation (please no – no ground-breaking cases, no “revolutionary” new software) but the talks by and discussions with different permutations of people are valuable, especially when you don’t have to rush to your next demo, session or meeting as you do at some conferences.

There is a growing feeling, in the US and the UK alike, that it is time that we moved on from the basic elements of eDiscovery / eDisclosure. It is not that the work is done to complete some notional Phase 1. Horror stories abound, of lawyers taking no steps to preserve data, of work which is unnecessary or duplicated, of aggressive tactical play calculated to achieve nothing but extended timelines and wasted costs. We seem, however, to be going at the speed of the slowest members of the ediscovery wagon train, and it is perhaps time to leave them to be picked off by hostile courts and unfriendly clients. The US sets itself higher targets than the rest of us in terms of the procedural hurdles, as well as the volumes, and the falls are correspondingly greater. The resulting debate and discussion is inevitably higher in the US and the role of an outsider is to pick out those things which are of universal application. As in the UK, it so often comes back to the fundamental objectives behind the rules – the “just, speedy and inexpensive” mantra of the FRCP’s Rule 1 and the “overriding objective” in England & Wales. Continue reading →

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Getting to the Carmel Valley eDiscovery Retreat

Posted on July 19, 2011 by Chris Dale

Carmel eDiscovery RetreatI am at the Carmel Valley eDiscovery Retreat, a little south of San Francisco. My wife, Mary Ann, is with me, which is what happens when you make your wife a director of the business and put her in charge of travel arrangements. In business terms, I am delegating non-core functions, leaving me free to do the writing and speaking, and all the background stuff which lies behind them. You don’t realise how much time is spent on airline websites and on hotel bookings until you pass the job to someone else. That said, I have just been called from writing this in order to explain how the light switches and bath plug work, which doesn’t happen when you travel alone after years of experience of the obscurity of hotel fixtures and fittings.

The Carmel Valley eDiscovery Retreat is a new event in the calendar. Chris La Cour, who runs it, invited me to come nearly a year ago and I was not then willing to commit to it before waiting to see what else competed for the time and, to be frank, whether Chris got it to fly. My fellow director was hooked from the start by the photographs of Carmel and the region, and made sure that I kept the week free; meanwhile, the list of speakers and sponsors became more interesting by the month – there is a big overlap between those who sponsor the eDisclosure Information Project and those involved in this event. Continue reading →

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CY4OR web site brings forensics to lay lawyers

Posted on July 15, 2011 by Chris Dale

A nice reference has turned up on CY4OR’s website to supplement the words like “professionalism”, “expertise” and “excellent” which recur amongst their testimonials. The one I like reads as follows:

Professional and prompt service and able to “dumb down” the technicalities so that they are understandable to computer illiterates like myself

Another reference includes the words “a personal element”, which ties in with my strongly-held view that personal connections are a key differentiator in a market where it is hard for any of them to find new words to describe what they do.

This is not in fact what took me to the CY4OR website. I went there to capture a couple of blog posts which Bethan Williams put up at the beginning of June and which, like all blog posts, have disappeared from the top of the list. They are summaries, in terms intended to be understood by laymen, of the main purposes and benefits of engaging a forensic investigations company like CY4OR.

One is headed Computer Aided Fraud Detection and Investigation Tools and the other is called Recent Developments in Computer Forensics Analysis. Being “computer illiterate”, as the referee describes him or herself, is not itself the problem. The problem lies in not spotting the possibility of finding (or losing) evidence at the right time in a case, and knowing where to turn for help with that. These articles recur in the current edition of CY4OR’s newsletter – this is called Digital Exposure, and you can sign up for it on the CY4OR site.

I am writing a paper for CY4OR which focuses on what lawyers need to know in a broad range of circumstances, including some which are not necessarily obvious. Amongst the testimonials, for example, are a couple which refer to the use of forensic evidence to disprove something or to acquit someone wrongly accused of some computer misuse. It is worth emphasising that computers can hold many clues which may overturn apparently strong but circumstantial evidence, as well as for finding or proving a case.

CY4OR are certified Clearwell partners and the latest entry on the CY4OR blog, headed A More Comprehensive eDisclosure Solution, covers the acquisition of Clearwell by Symantec which has just closed – I wrote about that here. CY4OR will be very pleased to show you what it is which prompted Symantec to buy Clearwell for $410 million.

A pedant writes: “What is a lay lawyer?” Mike Taylor challenges my use of the word “lay” in my heading. He is not wrong to tease on the subject, but I ain’t changing the thing which connects this post to Google’s indexes. “Lay” in this context means “not expert”; lawyers may be expert in the law but, like the giver of the testimonial referred to, not expert by their own admission in some discipline needed to pursue an aspect of engaging in their profession. That is what the article is largely about, and that is why the word “lay” appears in its title.

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Welcome to kCura as a sponsor of the eDisclosure Information Project

Posted on July 13, 2011 by Chris Dale

It is a great pleasure to welcome kCura as the latest sponsor of the eDisclosure Information Project.  The connection goes back a bit, and the arrival of their logo on my sites is part of a continuing if intermittent strand of connection-points.

Scene 1

It is years ago – 2004, I guess, in my prior life before the eDisclosure Information Project. Mark Dingle, then at Simmons & Simmons, points me to a small software company which, he predicts, will do very well with its document review platform Relativity. Mark’s recommendations are usually worth following up and I drop kCura a line, getting a reply at once. I knew nothing of US eDiscovery in those days, and no one in the US had heard of me, so the quick response gives a good impression. Other things intervene and I am not in a position to pursue the connection.

Scene 2

Four years have passed and it is the summer of 2008. kCura and Relativity are becoming well known on the strength of some high-profile sales and an unmatched reputation for the quality of the support given to customers. Its CEO, Andrew Sieja, visits me in Oxford. Andrew proves to be about 20 years younger than most CEOs and bursting with enthusiasm for the market and for his software’s place in it. Having never met before, we describe our respective ambitions to each other as we walk up the river. His aim is to make kCura a world-class player within two years; mine is to be seen as authoritative in every jurisdiction requiring discovery over the same period. Our respective ambitions probably seem rather fanciful to each other as we wander along English country paths with the dog. I use our conversation as the springboard for an article Meeting People is Right, my fullest articulation to date of the fairly simple proposition that lawyers need to know who the providers are and what they offer. I wanted, I said, “to make suppliers allies in the collective fight to help lawyers see what is possible”. Apart from references to named people who have moved jobs since then, I would write the same article today. Continue reading →

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Clearwell is now officially part of Symantec

Posted on July 12, 2011 by Chris Dale

Clearwell is now officially part of Symantec is the self-explanatory title of today’s post on the Clearwell eDiscovery blog and of the more formal acquisition report on Symantec’s site as the acquisition and regulatory formalities come to an end. Clearwell’s former CEO, Aaref Hilaly, is now VP and General Manager, Clearwell, after an end-of-term period of mixed sentiment and excitement which I found rather endearing coming from a hard-nosed and extremely commercial company.

The message from the closing blog post is of integration of the eDiscovery and archiving workflow solutions from the two companies. For the moment anyway, Clearwell’s distinctive branding remains on the website, and Aaref Hilaly promises that the information-flow will continue as the integration moves forward. In the interval between my dictating this post this morning and editing it now, the “blog” link on the Clearwell site has been redirected to Symantec’s blog, which shows that changes are rolling out hour by hour.

Aaref Hilaly’s previous post from the end of last month is headed Clearwell lives on, but it’s farewell to “Clearwell Systems Inc”. The post runs through the Clearwell story from the vision of the founding team less than seven years ago through to its sale for $410 million. Aaref Hilaly gives credit to luck along with an obvious pride in the strategic and investment decisions and hard work which brought that reward to the company’s shareholders.

Instead of the conventional one-liner thanking all those who contributed to the company’s success, Aaref actually lists them, from those who organised the first round of funding through to those who handled the Symantec M&A via the development, sales, marketing and other teams. I am extremely touched to be included in a list of those who are credited as “doing so much to help define eDiscovery software as a space and make it intelligible to end-customers”. I started the eDisclosure Information Project in early 2007 and I am not sure that I had heard of Clearwell then. Anyone now making the most cursory review of the market as a potential buyer will come across Clearwell’s name, even without its recent position in the top right-hand corner of Gartner’s eDiscovery Magic Quadrant.

I could be forgiven for having mixed views on these acquisitions – every reduction in the pool of players in the eDiscovery market diminishes the number of potential sponsors for what I do. Fortunately, Symantec is also one of my sponsors, and I very much look forward to being involved with the joint future of these two companies.

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A lull in the Predictive Coding battle

Posted on July 12, 2011 by Chris Dale

The role of a journalist in war, it is said, is to come down from the hills after the battle and bayonet the wounded. I will content myself with a tour of the battlefield.

If this means nothing to you, you may care to refer to my long article Predictive Coding Wars: Recommind Contra Mundum in which I cautiously navigated a war of words which broke out when information software company Recommind issued a press release headed Recommind Patents Predictive Coding. I reported the reactions of others whose technology is of the same kind (I’m treading carefully here with my choice of words) and of market commentators, ending the story with an article of 16 June by Recommind’s CEO, Bob Tennant, headed Of Predictive Coding and Patents.

Recommind’s chief critics were Herb Roitblat of OrcaTec  and Equivio. Herb Roitblat was quick to say that Bob Tennant’s article satisfied him. The story comes up now because Warwick Sharp, VP Marketing and Business Development of Equivio, has written an article headed Predictive Coding, Patent Wars and May the Best Product Win – the latter words being an echo of Equivio’s main message in their formal comment about the subject. In the interim, Metropolitan Corporate Counsel has interviewed Bob Tennant under the heading Revolutionizing eDiscovery With Predictive Coding.

It is probably not a coincidence that Warwick Sharp has taken his headings from Shakespeare’s darkest plays, Macbeth, Hamlet and King Lear. Shakespeare, of course, has something to say on every subject, including this one – is this Much Ado About Nothing? Do we say, like Mercutio as he bled to death, “a plague o’ both your houses”? Give me a couple of hours, and I could write a whole relevant paragraph made from quotations from Shakespeare’s plays – you might say, for example, that the whole subject is “Greek to me” as Casca said to Cassius, and that you don’t understand a word of it.

We all have things we do not understand – I would lump string theory, Serbo-Croat and line dancing together as areas of skill or knowledge which I am happy to do without. I do not understand, any more, how a motor car engine works – the “any more” signifying both that they have become more complex and that their reliability removes the need to understand what happens when I turn the key. Do you need to know how predictive coding works, what can be patented and what cannot, and how it differs from potato peeling (to take Warwick Sharp’s analogy)? No, you don’t, any more than I need to know what happens when I turn the car key, but you ought to know what advances have been made in computer-assisted document review.

I take a look at some of these applications about once a year – I saw Recommind’s Axcelerate Review & Analysis solution demo on Friday, as it happens, and it is about time I caught up with changes to Equivio’s Relevance since I last saw it. I do not have to go anywhere to see these demos – they are brought to my desk over the web, and are “live” in both senses – a human is presenting them and they involve real-time searches of live data. I can interrupt and ask the demonstrator to go back to explain something again, and they are a painless and informative way of catching up with developments or, if it is all new to you, of understanding these tools and what they can do for you.

As I say, Warwick Sharp’s latest article repeats what was the theme of Equivio’s first riposte to Recommind’s claim – “May the best product win”. What is “the best” is not capable of absolute measurement or, rather, I am not qualified to give a view as to which is the best even if it were politic to try. There are several choices here (Recommind and Equivio are not the only players) and the important thing to understand is that the competition between them drives the technology upwards and the prices down. Any conclusion reached a year ago about what is right for you and for your cases and clients ought to be reviewed – just as your clients are probably reviewing which external law firms are best equipped and skilled for their eDiscovery.

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ZyLAB eDiscovery tools as a prototype for removing discovery bottlenecks

Posted on July 11, 2011 by Chris Dale

When evaluating products of any kind, it is helpful to know how they will cope with the extremes. Cars are road-tested at speeds and in conditions far removed from the everyday experience of most drivers; the specifications for cameras and similar electronic equipment often include statements of minimum and maximum operating temperatures well beyond anything which you and I are likely to encounter; watches operate at depths and altitudes which we hope never to reach.

The equivalent extreme in eDiscovery terms, apart from the ability to handle very large volumes, is a war crimes investigation and tribunal. The data sources are often far removed from the neat corporate environment of servers and laptops; the events took place in circumstances where data preservation was the last priority; the required standard of proof is a criminal one. If your information system is capable of managing those implications, it is almost certainly good enough for your case.

Well-known technology analyst IDC has produced a report called ZyLAB: Enabling Prosecution of the Unspeakable on the technical and operational issues faced by the United Nations information management team in various war crime tribunals, drawing parallels with commercial eDiscovery projects in civil litigation. ZyLAB has been heavily involved in many of these investigations and continues to be so.

There is a press release about the IDC study here with a link to the report itself.

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LDM Global and AccessData announce strategic partnership

Posted on July 11, 2011 by Chris Dale

I was going to say that the strategic partnership recently announced by LDM Global and AccessData is like a wedding announcement – two people you know publish their intention to tie the knot and you think “Ahh, made for each other”. The analogy breaks down pretty quickly, however, not least because these relationships are non-exclusive; if they are at all like a marriage, then it is an open one from the start.

LDM Global is an international provider of information and data management solutions, well-known in the eDisclosure / eDiscovery world on both sides of the Atlantic and further afield. I wrote about LDM Global here when they became sponsors of the eDisclosure Information Project.

AccessData is an eDiscovery software and services company with solutions stretching from computer forensics (its FTK forensic software has been around seemingly for ever) all the way through to review with a range of eDiscovery products including the Summation family of document review applications. They are also a services company – “the full spectrum of services from discovery planning to production” as their website says, and also offer hosting services in the UK, Canada and the US. They also are sponsors of the eDisclosure Information Project – I wrote most recently about them in connection with the excellent conference which I moderated for them in Frankfurt at the beginning of June.

The relationship is non-exclusive on both sides – LDM Global offers a range of technologies to its clients, and AccessData provides its applications through a range of partners in addition to its own services offerings. I spell this out because potential buyers who are new to the market can find these overlaps confusing. It would be a great deal easier, they think, if software companies stuck to providing software, and services companies just offered services or, alternatively, if everybody supplied everything. Markets do not work like that or, at least, fiercely competitive markets like this one do not work like that. It is a strength that companies like LDM Global can open the door to a range of applications, choosing the right one for the job and, crucially, having the skills to manage both the relationship and the technology. It is equally a strength that software companies like AccessData have a stable of knowledgeable partners to take their products to the market.

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Two UK backshoring stories in a week

Posted on July 8, 2011 by Chris Dale

I had not heard the term “backshoring” until this week, but that is perhaps because it is a relatively new phenomenon. It is the opposite, or, rather, the reverse, of “offshoring”, another of those annoying-but-convenient one-word labels for major shifts in business practice. You can’t backshore until you have offshored and repented of it or, as you would say to the shareholders, “Market conditions have changed and what was the right strategy 12 months ago no longer works for us”.

The context in which it arises now is two stories about UK businesses who moved their call centres to India but who are now moving them back. The expressed reasons are diverse – the one headed New Call Telecom Mumbai call centre moves to Burnley gives various reasons for this retreat: costs are rising in India; employment is high, so employees can move jobs with ease (there are not so many choices in Burnley). The one which appeals to me as a consumer is the comment that the East Lancashire accent is “quite pleasant and easy to understand” so that “the average call handling time in the UK should be reduced because people get their point across on the first pass”.

The norm in the UK is that you can always get through to an English-speaking person if you want to place an order or pay a bill. If you want support or service, however, you get put through, after much diversion and pushing of buttons on a crackly line, to a softly-spoken person whose English runs to reading the generic script. My own “favourite” was the ISP’s man-on-the-spot in Uttar Pradesh who started reading me the default instructions (“Turn off your computer and the router and check all the connections, leave it for 60 seconds….”); it turned out that my whole district’s internet service had failed.

You can to some extent trace the rise and fall of economies by the accents used in call centre operations. The first wave of offshoring was to Scotland (I once caused great offence by asking the operative if there was someone in his north-of-the-border office who spoke English); the next round was to India; the Eastern Europeans added a tone of border-guard suspicion to their inability to understand your questions or frame replies (“Vy are you needing asking me ziz question?”); now much of the inbound calling (that is, people cold-calling to try and rip you off as opposed to call handlers failing to resolve your problems) comes with a Far Eastern accent. The tones of East Lancashire will be a great improvement (and let us here head off the whines from the dimmer end of the Left-Liberal pond by emphasising that it is the ability to speak and understand English which matters, not the race, nationality or colour of the speaker). Continue reading →

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Welcome to iCONECT as a sponsor of the eDisclosure Information Project

Posted on July 8, 2011 by Chris Dale

I am very pleased to welcome iCONECT as a new sponsor of the eDisclosure Information Project – I cannot say “the latest” sponsor, since kCura has come in since the iCONECT logo went up. iCONECT joined just before I left for Hong Kong and I wanted to see a demo before writing about them.

The connection goes back to LegalTech in New York in February when, unusually for me, I sought out iCONECT’s booth – “unusually” because I generally spend that week fending people off not seeking them out. I was curious, because iCONECT is a big name in electronic discovery and our paths had never crossed. Now that I have seen their nXT product, it is yet more curious that I had not seen it before.

nXT is iCONECT’s document review tool, with a strong emphasis on workflow management and lawyer usability. They also have the INCEPT early case assessment software whose emphasis is on estimating the time and cost of review, as well as specialist tools for legal service providers. My primary interest, as always, is in anything which makes it easy for the legal teams to reduce the time and cost of review.

The review application reminded me a little of one of those well-made storage units with a big central space and many easily accessible cupboards and drawers close at hand, each containing some discrete function which users can bring forward or conceal as they wish – or as the administrator wishes, since there is granular user-by-user control over what is seen by whom. I do not do software reviews, as you know, still less try and describe every function, and it is enough to say that most users will find everything they need here. Continue reading →

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Lawyer Invitational Golf Tournaments raise money for Children’s Hospital

Posted on July 6, 2011 by Chris Dale

My friend Robert Childress of Wave Software draws my attention to the Lawyer Invitational Golf Tournaments, the next of which takes place on 18 July at the Trump National Golf Club Westchester NYC. I see that the Westchester event kicks off with a “Shotgun Start” – everything is bigger in America, and I assume that they use a 12-bore where the rest of us would settle for a starting pistol.

I have to say that I do not really understand golf – it seems an awful lot of clutter to carry for a walk and, whilst I see the attractions of driving around in one of those little trucks, it must be slightly tiresome to have to stop and get off it every so often in pursuit of something which just sits there waiting for you to hit it and which you can’t eat when you catch it. Many people seem to enjoy golf, however, including many lawyers, and it is good to see so many of them doing something for a children’s charity.

That charity is the Arnold Palmer Hospital for Children, a not-for-profit hospital which provides treatment of children from around the world regardless of their ability to pay.

Robert Childress and Wave have been enthusiastic sponsors of the Lawyer Invitational since it began. Other National Charter Sponsors include LexisNexis, Kroll, Thomson Reuters, EMC2, eTera, Encore (now part of Epiq Systems) and Deloitte. The tournaments seem a good way to combine a social event with business networking opportunities as well as the opportunity to support a worthwhile charity.

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Epiq Systems Breakfast Seminar: Cross-Border Regulatory Investigations

Posted on July 4, 2011 by Chris Dale

The UK Bribery Act is now on us, having come into force on 1 July. Like the Foreign Corrupt Practices Act in the US, the Bribery Act has highlighted the importance of information management and of eDiscovery techniques and processes both in the preparation for and in the reaction to regulatory and similar investigations.

The subject raises both cross-disciplinary and cross-border implications, with lawyers specialising in the pure regulatory aspects joining forces with eDiscovery / eDisclosure experts to emphasise that a large element of both prevention and cure lies in knowing what information you have, in being able to discriminate between what matters and what does not, and in being able to find relevant documents and information, preferably before the regulator or prosecutor does. Alison Stanton, eDiscovery counsel for the civil side of the US Department of Justice, emphasised at the recent IQPC conference in London that the DOJ will find these documents once it has cause to start looking; the same will be true of the SFO. Modern technology and the skills you need for electronic discovery have all but killed the idea that your needle was safe if its surrounding haystack was big enough.

This was but one of the subjects covered in a breakfast seminar which Epiq Systems organised on 14 June in London. David Cracknell of Slaughter and May and Mark Surguy of Eversheds covered the practical side of the legal context; Vince Neicho of Allen & Overy and I dealt with the e-Disclosure aspects; Professor Dominic Regan brought a more than academic eye to bear on the law.

I find it quite hard to keep notes of events like this, particularly when the moderator, in this case Greg Wildisen of Epiq, may fire the next question at any of the panellists – it makes for livelier discussions, but you lose the thread if you are still noting down the answer to the last question but one. Fortunately, Deborah Blaxell of Epiq took comprehensive notes which you can find here Continue reading →

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Co-operation, calendars and change: eDiscovery parallels from Trafalgar

Posted on July 4, 2011 by Chris Dale

A strutting, ambitious Frenchman with platform heels and an attractive wife wants to make all Europe subject to French bureaucracy. A union of European states wants to take all Britain’s assets and make her people obey foreign laws. The British government has cut back on defence spending and is in no shape for war.

Yes, it is 1805 (what did you think I meant?). The short-arse Frenchman with the elegant wife is not Sarkozy but Napoleon Bonaparte, a strategic genius and master of tactics, whose Grande Armée is encamped at Boulogne within sight of the English shore. He has already once embarked his army into the barges which are to take them across the Channel, but the wind dropped and, besides, the Royal Navy rules the Channel and the combined French–Spanish fleet is blockaded in Mediterranean and Atlantic ports. This is just as well for the British, since defence spending including, crucially, ship building, was cut after the Peace of Amiens in 1802 and the voters are not willing to see their income tax increased. It takes a long time to build a ship of the line and the strongest force on the south coast consists of farmers with pitchforks.

I have been reading Nicholas Best’s Trafalgar, a lightweight but entertaining history of the Battle of Trafalgar of 21 October 1805. Three ediscovery / e-Disclosure parallels came to mind as I read it, one to do with cooperation and mutual interest in mid-battle, one topical one to do with the penalties for a mis-reading of the calendar, and one longer term parable about old technology being replaced by new. There are other parallels as well – we are now largely subservient to European bureaucrats, a Portuguese President of the European Commission has just demanded yet more British tribute money to subsidise the rest of Europe, and the most recent defence cuts leave us in much the same state of preparedness for war as we were after Amiens. I do not claim deep insights here, merely some Sunday evening reflections. Continue reading →

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MoJ Consultation on Civil Justice and Bash-a-Burglar: every man for himself replaces access to justice

Posted on July 3, 2011 by Chris Dale

Lady Hale’s speech on access to justice, the government’s “bash a burglar” scheme, issuing proceedings in Salford, competition from Singapore for dispute resolution as well as banking, eDisclosure and hoods packing heat – all in 2,000 words.

A Ministry of Justice consultation has as its title Solving Disputes in the County Courts: creating a simpler, quicker and more proportionate system and the sub-title Reforming Civil Justice in England and Wales. The consultation closed in the same week as the MoJ announces plans to clarify how much force you may use to kill a burglar and coincides also with a well-received speech by Lady Hale about access to justice.

There is a mixed bag here, human rights rubbing shoulders with the right to self-defence, and in the same bag as the cost of commercial litigation. The common theme seems to be the withdrawal of the state from the inter-action between its businesses and citizens. I am all for a small state, but there is plenty to trim before government abandons the provision of justice. If it was a business, you would say that this was a core function. The MoJ’s core function seems to be the provision of employment for civil servants.

Thanks to my being abroad, I bring you this consultation too late for you to make representations on it, but you may like to see what is going on – and this show will run and run.

The reference documents are as follows:

The MoJ consultation paper CP 6/2011

A post by Charles Christian on the Orange Rag of 27 June headed The judge says technology reform is not happening fast enough. This links to the consultation response by HHJ Simon Brown QC of the Birmingham Mercantile Court and to a letter from him to the Times of 23 March.

My own representation, made on 29 June which, as you will see, focuses on the urgent need for judicial training.

I think that we have to accept that none of the demanded improvements will happen, in the short term at least. Modernisation of the court systems was promised by new Labour in their first year in office and, like so many of the Blair government’s promises, was either dishonestly made at the time to catch the next day’s newspapers or was blocked by Gordon Brown as part of his strategy of spiking Blair’s guns wherever possible. Civil servants are adept at blocking change, hopelessly out of their depth when negotiating procurement contracts, and always willing to sacrifice client-facing staff and services in favour of jobs for senior paper-shufflers. Continue reading →

Posted in Access to Justice, Civil justice, Courts, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Mediation and ADR, Ministry of Justice | Leave a comment

Time to take the next steps: a Hong Kong eDiscovery conference

Posted on June 26, 2011 by Chris Dale

Leaving aside Australian conferences, this was my fourth AsiaPac event. Two years ago, I co-chaired a conference for LexisNexis in Singapore. Shortly after that, Jeffrey Teh and others from LexisNexis set up InnoXcell to bring business events to the region. I did conferences with them last year in both Hong Kong and Singapore and was pleased to be asked back to Hong Kong for this week’s conference.

Here is a Twitter exchange between me and whoever tweets on behalf of @Exterro and @eDiscoveryGroup after the first day of the conference:

Me: Day 1 of eDiscovery conference in HK ends – a good day. Two sessions down and one on costs to go tomorrow

Exterro: How has that conference being going? Any ground-breaking stuff happening?

Me: That is not what to expect here – slow attrition is the target rather than breaking new ground

Exterro: Well then how is the slow attrition going? [He doesn’t give up, this one]

Me: Steadily and in the right direction

eDiscoveryGroup: “Steadily and in the right direction?” What direction are they headed?

Me: If I’d known I would provoke an inquisition from all corners I’d have kept my trap shut. My report will follow.

So here is that report. “Steadily and in the right direction”, as used in my tweet, has its plain English meaning – nothing dramatic has happened in Hong Kong in e-Discovery terms since I was last here, but there is interest from a wider range of companies and lawyers provoked by much the same pressures as arise elsewhere. As with everywhere else, we need to move on from “What is native format?” to “How can I best reach my client’s objective?”. Continue reading →

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The Discovery skills of Hong Kong cab drivers

Posted on June 25, 2011 by Chris Dale

I am in Hong Kong, having just finished the two-day InnoXcell eDiscovery conference. The purpose at these conferences – my purpose anyway – is to encourage lawyers to know their way around the rules, the practice and the technology so that they can set off in the right direction. The rules have more flexibility in them than most people realise; the technology advances in ability and reduces in cost in a way which keeps pace, more or less, with the increases in volumes. Lawyers acquire a certain confidence if, as well as knowing the facts and understanding the issues, they can use the rules to their advantage, estimate the costs and have at least some idea of what technology exists to help them to help their clients to their objective. Electronic documents holds the evidence, and knowing how to give discovery is a primary litigation skill.

Relatively few lawyers have this array of skills and knowledge, whilst purporting to offer a litigation service in which the costs and other implications of electronic discovery/disclosure are usually the biggest single component. Hong Kong taxi drivers offer a parallel. Continue reading →

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Predictive Coding Wars: Recommind Contra Mundum

Posted on June 19, 2011 by Chris Dale

It is a novel experience to spend a whole Saturday writing a 4,330-word article whose conclusion is that none of its subject-matter is really very important to one’s readers, however much it means to the participants in the story.

Sink the BismarckIf you have come to see me take sides in the predictive coding war of the last few days, you will be disappointed. My job is enlightenment: picture me, if you like, as a small boat sailing between the double line at Trafalgar as the shots fly overhead, trying to give an update on the state of the technology being used rather than a partisan account of the battle. Actually, it has been more like Sink the Bismarck, with enemy ships and planes great and small all directing their fire at one target. Fortunately for Recommind, playing the Bismarck in this scenario, we don’t get to see the final reel.

For those who do not know, I am funded on a flat-rate basis by sponsorship from the companies whose logos appear on the right. Anyone who expects me to take sides misunderstands the nature of my role. It is not just a matter of not biting the hand that feeds me, nor of holding the ring between them when they start fighting each other. The aim is to try and shine a steady light in the darkness for the benefit of those who must get on with the job of managing electronic discovery / disclosure, and to keep it burning whatever is going on around me. I do not actually think that the market gives two hoots for this battle or its outcome (if there is one), but it may be helpful to have a distillation of the debate, if that is not too dignified a term for it.

While we are on disclosure of interests, I should say that I know nearly all the people mentioned here apart from Henry V, Hamlet, Alice and Humpty Dumpty, Houdini, Pontius Pilate, Tom, Dick and Harry, Lt Farley (late of the Confederate Army) and a couple of the referenced authors. Continue reading →

Posted in Clearwell, Discovery, E-Discovery Suppliers, eDisclosure, eDiscovery, Electronic disclosure, Equivio, FTI Technology, H5, Recommind | Leave a comment

Virtual LegalTech on 16 June – Advanced Litigation Technologies with LeClairRyan

Posted on June 16, 2011 by Chris Dale

I took part in the very first Virtual LegalTech, ALM’s imaginative way of delivering webinars online in a series running through a day, giving delegates most of the benefits of attending a conference without the cost and burden off getting to it.

I have now been asked to moderate a session for the 16 June Virtual LegalTech. The subject is Advanced Technologies for Litigation Support Professionals which goes out from 11:15am to 12:15pm Eastern Time today, 16 June.

I had a free hand to choose the panelists. At the real LegalTech in New York in February, I met Bill Belt and Daryl Shetterly, partners in LeClairRyan’s discovery solutions practice, who subsequently came to visit us in Oxford on one of their trips to the UK. They are contributors to LeClairRyan’s  ediscovery blog posts, with thoughtful articles which are practical and bang on point.

They kindly accepted my invitation to join me on the webinar, and we have put together a set of slides which begins with the New York Times article Armies of Expensive Lawyers, Replaced by Cheaper Software of March, goes through the different types of technology LeClairRyan and other ediscovery firms use in practice, and ends with ideas for establishing an ediscovery practice.

Other speakers during the day include Ann-Marie Gibbs, National Director of Consulting at Daegis, Monica Bay, Editor-in-Chief of Law Technology News, US Magistrate Judge David Waxse and former US Magistrate Judge Ronald Hedges. The judicial panel is called Why Lawyers Cannot Afford to Ignore Technology which, I think, will nicely complement our session.

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Georgetown Law eDiscovery Training Academy crosses the bridge

Posted on June 16, 2011 by Chris Dale

The technology I really want to see is a time machine or some kind of teleportation device. I once attended conferences in Barcelona and Sydney in the same week. I have had breakfast in Sydney and dinner in Washington on the same day and, later this year, I have to do a three-day conference in Germany and a two-day conference in Washington in the same week. I have had to accept that I cannot be with Sedona in Lisbon and with InnoXcell in Hong Kong next week (Hong Kong wins), and I was equally sorry last week that I could not be simultaneously in Frankfurt and Georgetown.

The Georgetown event was the Georgetown Law eDiscovery Training Academy. Guidance Software gave copies of its Encase Forensic Software for each delegate to use during the week and Craig Ball explained the computer context and showed how to use EnCase.

The faculty for the five days included US Magistrate Judge John Facciola, Chief US Magistrate Judge Paul Grimm, Michael Arkfeld (Arkfeld & Associates LLC), Jason Baron (National Archives & Records Administration), Maura Grossman (Wachtel,Lipton, Rosen & Katz), Tom O’Connor (Gulf Coast Legal Technology Center),  and Larry Center (Georgetown CLE).

Patrick Burke, Senior Director and Assistant General Counsel of Guidance Software describes the event in two blog posts here  and here, and Tom O’Connor wrote about the wrap-up here. I like in particular Judge Facciola’s comment “this conference crossed the bridge.  I for one can’t go back to superficial lectures any more.  I’ve never seen anything like this.  It’s been a terribly exciting experience for me.” 

Training and education are rather like marketing – we are always looking out for new ways of delivering knowledge and understanding. Events like this take an immense amount of organisation and need the support such as Guidance Software gave to this one. For the foreseeable future, articles, seminars and conferences will be the backbone of the education effort. This event shows us that there are different and more imaginative ways of getting messages across. I wish I had been there.

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eDiscovery in Germany: moderating a conference for AccessData in Frankfurt

Posted on June 16, 2011 by Chris Dale

It was a dark and stormy night, and as he watched the lightning split the clouds and heard the thunder rolling across the castle’s turrets and towers, he thought sod this for a game of soldiers. With six unbroken hours of speaking and moderating and a late night behind me, and only a late morning flight ahead, surely I can just be left just to sleep for a change.

Kronberg Castle exterior

The occasion was AccessData’s Electronic Discovery Conference in Germany, run in partnership with H7b1 and DRS Digital. The venue was the Schlosshotel Kronberg just outside Frankfurt, quite the finest venue I have ever spoken in. It was the home of Victoria, eldest daughter of Queen Victoria, and Empress-Dowager of Germany following the death of her husband Frederick after only 99 days as Emperor. She was the mother of Wilhelm II, which is why Britain and Germany were ruled by cousins during the Great War. It belongs firmly in the English Gothic Revival style, and the curious but comfortable mixture of cathedral-like pillars and warm, red carpets is very English, whilst the exterior is unmistakably German. The menu is similarly divided, speaking of “the “englischer Tradition der Afternoon Tea” with “Scones mit Clotted Cream und Muffins”. It is a very tangible reminder of the close relationship which once existed between Britain and Germany and the similarities in outlook and much else.

There is much that is different, of course, and the discovery of documents for litigation is one of those differences. Germany, like other countries in Europe, is having to recognise that electronic documents, and the means of handling them, can no longer be dismissed glibly as something which Americans do, with the implication that it is an unnecessary and unnecessarily expensive game. It has something of that about it, certainly, to non-US eyes, but it is important to distinguish between different points here: on the one hand we have the fundamental principle that the documents hold the contemporaneous evidence and its allied equitable principle that those who seek help from the court must be transparent about their evidence; on the other, we have the rules and procedures governing the scope of discovery and its production. One can praise one and stand amazed, sometimes, at the other. Continue reading →

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Nigel Murray reaches Paris, raising £4,500 for Help for Heroes

Posted on June 12, 2011 by Chris Dale

Nigel Murray of Huron Legal has completed his arduous cycle ride for Help for Heroes. Not surprisingly, he was not able to keep his blog going whilst cycling, and I am pleased to pass on his emailed report (minus the photographs) which reached me a few minutes ago.

Dear All

Arrived back last night after a most memorable trip.  I am afraid I did not manage to keep my blog up to date however the “official blog” including good short videos of each day is at:  http://www.helpforheroes.org.uk/blogs/BBBR_2011/ It will take a while to look at – but the videos are excellent and really give a good feel of the ride.

Arriving in Paris after cycling nearly 350 miles was memorable.  I cycled the last of the route  – from outside Versailles to the Arc de Triomphe with the wounded (11 in 3 wheel hand powered or site-down bikes as well as other limbless on normal bikes);  a wonderful experience being amongst the soldiers with their excellent humour – and to see the reaction of the Parisians – so many just stopped what they were doing and clapped.  The car drivers however were a tad different as we managed to cause quite some traffic jams!

Arrival in Paris was excellent, despite the heavens opening and everyone being absolutely soaked during the memorial service at the Arc, but still in good humour.  The French police then escorted us down the Champs Elysee with one of the support vans blasting out various classic Bruce Springsteen hits – again to much clapping, and even dancing, from the Parisian population.  I cannot imagine either Park Lane or 5th Avenue being closed at 5pm on a Friday afternoon for a bunch of French cyclists! The French really appreciate what we did for them all those years ago – and what we are still doing today.

During the celebrations we heard that Help for Heroes had managed to raise over £100m.  A huge effort in just 3 ½ years, and thank you all for your part, especially those who have sponsored me over the last 3 years.  The Sun paper is a sponsor and had a team of 3 on the ride.  Their coverage is at: http://www.thesun.co.uk/sol/homepage/news/campaigns/our_boys/3631688/Help-for-Heroes-br-hits-historic-100m.html  and if you look carefully you can make out my back just behind the Page 3 girl! Continue reading →

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Australian Discovery Report stresses Case Management, Consistency and Understanding

Posted on June 12, 2011 by Chris Dale

The Australian Law Reform Commission published its final report Managing Discovery: Discovery of Documents in Federal Courts at the end of May. The net effect of the recommendations is conveniently set out in the final issue of the ALRC’s Discovery e-News:

The ALRC believes that the net effect of its recommendations will be that:

  • judicial officers are encouraged and supported in their role as robust case managers;
  • parties and practitioners will have a clearer understanding of what is expected of them in relation to discovery obligations;
  • the scope of discovery will be defined more clearly and in the context of an understanding of how information is stored and can be accessed; and
  • the clarity of expectations and certainty in obligations will help to maintain proportionality in discovery costs.

The Final Report runs to 384 pages and there is a convenient Summary Report which, at 28 pages, carries the main points of interest.

The key themes on page 10 of the summary will be recognisable to anyone interested in this area:

  • while the reform trajectory in the Court was applauded, there were inconsistencies in practice across the bench;
  • robust judicial case management is critical in facilitating the resolution of disputes in the Court;
  • rigid rules of general application impose unwanted restrictions on judicial discretion;
  • expectations of parties in the Court are not always clear—uncertainties that lead to inconsistency of practice and potentially an increase in costs; and
  • there is an uneasy tension between the time and money that discovery can involve and the right of parties for a reasonable opportunity to present their case. Continue reading →
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Brand Camp cartoons say rather more than a thousand words

Posted on June 12, 2011 by Chris Dale

Few of those engaged in electronic discovery could have missed Tom Fishburne’s  Case in Point cartoons on the CaseCentral site, with their apparently infinite capacity to identify the weak points and have fun at their expense.

I had not realised that Tom has a parallel strand called Brand Camp which brings to the business of marketing the same sharp eye as he brings to ediscovery. My thanks, therefore, to Legal Aware, the blog of the BPP Legal Awareness Society, for drawing my attention to Tom Fishburne’s comment on the way marketing departments can kill spontaneity and creativity. We have some revisions to your “Tweet” and We’ve now missed the event by a week sum it all up very nicely.

Marketing is a difficult profession, and becoming more so as modern media methods allow far and fast distribution. If that means that your triumphs can reach a wide audience very quickly, the same is true of your failures, and more marketing material misses its target than hits it. In my article Twitter, Bribery and 37 Corporate Counsel in a Big Virtual Bar, I explored the conflict between (on the one hand) the immediacy and democratisation of marketing as its tools lie ever more readily to the hand of every amateur and (on the other) the risks which come with that. It is hard to reconcile that immediacy with the comfort of knowing that the business is being presented in line with the corporate ethos. There is no room for disclaimers in a tweet.

Whilst you can say a great deal in 140 characters, you can say very much more in a precisely-targeted cartoon. Every marketing department should have a few of Tom Fishburne’s works stuck up on the wall as a substitute for the thousands of words of marketing theory which drives so much of marketing practice – not always to its advantage.

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IQPC 2011 Information Retention and eDiscovery Exchange Survey

Posted on June 12, 2011 by Chris Dale

I wrote approvingly of IQPC’s Information Retention and eDiscovery Exchange which took place in Munich towards the end of 2010. I have been involved in some of the discussions about the 2011 equivalent, which will take place at the Kempinski Hotel Airport, Munich from 14 – 16 November 2011. I am very much looking forward to attending this, particularly after the conference which I moderated in Frankfurt last week and the interest and the people I came across there.

In support of the preparations for this event, IQPC has put together a survey for those with a professional interest in eDiscovery and document retention. They make the point, not unreasonably, that they can best produce sessions targeted towards people’s interests and concerns if they know what those are.

The survey can be found here. It should take no more than ten minutes to complete and IQPC will send you the results if you leave your contact details.

The sharp-eyed amongst you will have noticed that this conference takes place in the same week as the Georgetown Law CLE Advanced eDiscovery Institute in Washington. Fortunately, one is from Monday to Wednesday and the other is on Thursday and Friday.

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UK Law Firms should come to ILTA 2011 – August 21-25 in Nashville

Posted on June 12, 2011 by Chris Dale

ILTA is the International Legal Technology Association, an organisation committed to encouraging the advance of technology in law firms and, just as importantly, the advance of law firms by the use of technology. Its guiding principle is peer encouragement – the idea that we can best acquire knowledge, information and confidence by mixing with those who face the same issues as we do.

ILTA has events and programs running throughout the year, including ILTA Insight in London each April (see my report of ILTA Insight 2011 and Joanna Goodman’s much fuller one on the Orange Rag). ILTA’s main conference takes place towards the end of August each year at a suitable US venue. The word “suitable” connotes several things, one of which is mere size, because thousands of people attend from every corner of the legal IT world. Other requirements include a certain level of comfort, with leisure attractions on- and off-site for participants and, perhaps, their families – this is the height of the summer holiday season. Last year’s conference was at Las Vegas (my report is here), which comfortably met all these criteria.

ILTA 2011ILTA 2011 takes place this year in Nashville, Tennessee at the Gaylord Opryland Resort from August 21-25. These Gaylord Resorts are vast and, as the Resort web site shows, there is something for everyone, not least the music for which the city is famous. Tasteful it ain’t, at least to British eyes, but you can go to Georgetown or the German castle at which I spoke last week if you want taste. I go for the programme, for the company, and for the opportunity to share views and experiences which is what ILTA was established to provide.

That exchange of views is as valuable to a UK lawyer or law firm IT director as to his or her US counterpart. If you run your eye down the packed agenda, you will see subjects which affect UK firms of any size. If your perception is that all US law firms are vast, wealthy and remote in kind from your own firm, then that perception is just not right. The majority of firms are relatively small, with the same pressures to cut costs and work efficiently as face UK firms, both for their own sakes and for the benefit of their clients. The agenda reflects that, and on subjects much wider than my own particular interest in eDiscovery / eDisclosure. This is what I said last year:

Not so very long ago, the role of IT departments was to provide passive services – an accounts system, a contacts database, word processing and print services. If that is all you have now – well, send your managing partner and IT director to ILTA next year, if you are still in business next year.

Your Pound buys a lot of US Dollars at the moment. As I write, BA will get you there and back for £826, and you could probably do even better by shopping around. Why not come to ILTA 2011?

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Epiq Breakfast Seminar on Cross-Border Regulatory Investigations on 14 June

Posted on June 6, 2011 by Chris Dale

Epiq Systems is holding a breakfast seminar in London on 14 June called the Challenges of Cross Border Regulatory Investigations. The speakers are Professor Dominic Regan, David Cracknell of Slaughter and May, Vince Neicho of Allen & Overy, Mark Surguy of Eversheds and me. Greg Wildisen, International Managing Director, Epiq Systems, will act as moderator.

If this subject was not already on the agenda of companies and their lawyers, the Bribery Act 2010, now less than a month away, should be putting it there. The mixture of lawyers and edisclosure experts is chosen to bring a practical focus to the subject.

Further details and registration information can be found here.

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East, West Home’s Best – to a Midlands Law Firm with Epiq Systems

Posted on June 6, 2011 by Chris Dale

A trip by train to talk to a regional law firm gives an excuse to recommend the iPad as a library of those documents you will never read at your desk, and to recommend two papers in particular which address technology-assisted review. The message for the lawyers is not just of risks but of opportunities; the point is not whether you do document-heavy litigation but whether you could win work you do not already do. What case does not involve some electronic documents?

All my trips to foreign places (Orlando, Frankfurt and Hong Kong in May and June, for example) and the frequent references to developments in other jurisdictions do not detract from the fact that the flag which I fly is the eDisclosure Information Project, with its roots firmly in England & Wales. That word “disclosure”, part of the late-1990’s fad for changing the names of things in the hope of making them better, does at least serve as a discriminating label for the purpose of Google searches by those wanting to know more about it, so people can easily find me. One of the pleasures which results from this is to be invited to go and talk to a law firm, particularly one which recognises the potential for new work as well as the potential for risk.

No eDisclosure talk is complete without references to risk – risk of losing costs, risk of damage to reputation, and risk of actually losing the case because of disclosure failures. Having dangled a few of those, like the corpses of malefactors on an 18th century gibbet, I like to move on to positive things – of opportunities to be grabbed, work to be won, and reputations and careers to be enhanced for individuals, as well as for the law firms. I will happily talk on my own for an hour – four hours, indeed, if anyone will listen – but the most interesting and useful sessions are those done in tandem with a provider of litigation services picked from the list of those who sponsor the eDisclosure Information Project. It is even better if somebody else does the picking, either where the provider takes me along on their appointment or, as last week, when the law firm asks me if I would be willing to turn up alongside their choice of provider. This trip was to the Midlands in the company of Ben Hammerton, Senior Business Development Manager for Epiq Systems. It was the second visit by both Epiq and by me and it is always good to be asked back somewhere – it says something positive about the first visit and it gives the opportunity to expand a little on areas already covered. Continue reading →

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PissOffPRs 1.0 and PissedBot 2.0 – essential tools for everyone in Legal IT

Posted on June 4, 2011 by Chris Dale

The vintage legal blogger and tweeter, Charon QC [“veteran” surely? Ed] features on every list of legal commentators worth following. His 81,000 or so tweets encompass everything from what he had for breakfast, through television reviews and political comment, to (which is what really matters) focused and timely commentary on the big legal issues, driven by a very strong sense of the supremacy of the law, a feeling for what is right, and a sharp eye and pen for the follies of mankind.

One of his recent tweets offered a rebuke to a public relations person who had sent him not one, but two, copies of a press release, apparently in the hope that he would promote some product. As with most other areas of business life, legal technology PR contains a few who are absolutely excellent and those, too many to mention, whose continued existence in this market is a source of constant amazement. Too many of them have no idea what they are trying to promote, no idea about the market, and no idea about relating to people, and they were clearly in another room when the basics of grammar and spelling were taught at school.

Down at the bottom of my list are those who, knowing that I have some interest in legal technology but having no idea which bit of it I focus on, send me everything – billing and time-recording are obviously my favourites. I once got an e-mail clearly intended for Charles Christian – my e-mail address but the heading included Charles’s name or, at least, a recognisable variant on the spelling of Charles’s name. I was once sent, presumably in error, a spreadsheet of all the intended recipients of legal technology mailshots, complete with (in some cases) a commentary about them. My own entry was sadly lacking in detail, but I would like to think that it would read something like:

Grouchy, picky, does not suffer fools gladly, intolerant of material which is either irrelevant or likely to alienate any recipient. Has world-wide audience, does not hesitate to use it, and is likely to be read by the clients. Catch him on the right day with a topic of interest to his readers and he will do his best to make it interesting. Handle with care.

Anyway, Charon QC’s tweet said that he had sent the offending public relations person a bill for his time spent on reading the unsolicited press release. Presumably the fee doubled because he had been sent two copies of it. Continue reading →

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Nigel Murray takes to his wheels again for Help the Heroes

Posted on June 3, 2011 by Chris Dale

It is that time of year again. Nigel Murray of Huron Legal sets off this weekend for another arduous cycle ride across Northern France in aid of the charity Help for Heroes. His blog page is suspiciously light on training information this year and I suspect that, like the rest of us in edisclosure / ediscovery, he has been too busy to spend much time tuning his muscles or whatever it is athletes do.

Mary Ann and I had intended to be there this year – the sea crossings were checked and the hotels lined up, and we were looking forward to the break, the food and, almost incidentally, the pleasure of watching Nigel pedal by. Then came the invitation to moderate AccessData’s ediscovery conference in Frankfurt on Tuesday. Various options were discussed: you can go by train from Cherbourg to Frankfurt in not much less time than it takes to fly to Australia; we could cut short our break and I could stay at Heathrow for a dawn flight on Tuesday. It became clear that I could foul up the holiday, catch no more than a glimpse of Nigel, and arrive knackered for the conference after much rushing about; alternatively, I could just abandon Normandy, go to the splendid conference hotel the day before, and wallow in comfort and good food before taking to the platform. We can go to Normandy some other time and my opening talk – a tour of the world ediscovery scene – will be the better for it.

Nigel will manage without us, despite the apparent shortage of training. At the time of writing, donations total £3,401.00 against a very ambitious target of £6,000. For comparison, he raised £3,941 last year against a target of £2,200. His sponsorship page is here.

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LDM Global takes the UK Bribery Act and the FCPA to New York

Posted on June 3, 2011 by Chris Dale

As befits any ediscovery / edisclosure company with the word “Global” in its name, LDM Global is running in New York an equivalent of the session which I did with them and McGuireWoods recently in London.

Called the UK Bribery Act and the FCPA, the session draws attention to the international implications of the global reach of the UK Bribery Act with the information management implications which flow from that.

Speakers include Tim Barnes and Remy Rodas, Partners at Curtis, Mallet-Prevost, Colt & Mosle LLP and Don Macfarlane, Head of Operations & General Counsel, LDM Global, the event takes place starting at 8am on Wednesday, 8 June at the Yale Club of New York. Further information and registration information can be found here.

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Final Reminder: AccessData EDiscovery Seminar in Frankfurt on 7 June

Posted on June 3, 2011 by Chris Dale

This is a final reminder of an event taking place in Frankfurt on Tuesday 7 June at which I am moderating a conference on ediscovery for EU, and specifically German, companies. The conference, which is organised by AccessData, includes a range of experts on the legal, practical and technology implications for companies in, or doing business in, Germany

The details are here and, even at this late stage, an e-mail to Charity Wagner at AccessData may get you a place at what promises to be one of the more interesting events in which I participate this year.

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The Gartner Magic Quadrant for EDiscovery Software and other EDiscovery Market Matters

Posted on May 31, 2011 by Chris Dale

As I have often said, I am content to stick to my own part of the e-Disclosure / e-Discovery world and leave others to theirs. Deciphering market trends is the job of analysts; journalists can react quickly to news; the clammy dead hand of the industry press release, with its boilerplate verbiage and breathless hyperbole, can find its way round the world in minutes without any help from me; earnest lawyers can deal with properly foot-noted and referenced reports of cases. My role requires me to pull together such of the threads as will encourage lawyers to make the best use of the rules and of the technology to reconcile their clients’ objectives with the requirements of the courts, helping them to understand just enough of the technology to know what is available and broadly what it does.

May is always a busy time, thanks to IQPC’s information Retention and eDisclosure Management Summit in London and Guidance Software’s Computer Enterprise and Investigations Conference (CEIC) in the US, both of which always take place back to back on opposite sides of the world; one year found me rushing straight from Gatwick to IQPC, where I was caught sleeping through a session – fortunately, not one of my own.

This May has brought in addition the Gartner Magic Quadrant for E-Discovery Software, Autonomy’s acquisition of Iron Mountain’s digital assets and Symantec’s purchase of Clearwell, all on top of Epiq Systems’ acquisition of Encore Discovery Solutions in April. Tens of thousands of words have been written about these things, any one of which would be significant in any month, let alone all of them together. What do they mean for the lawyer, whether in-house or external, who has responsibility for managing electronic disclosure? Is there much to add to what has already been said?

Probably not, but it is worth gathering some of the threads together, using the Gartner Magic Quadrant as a background source. Gartner’s authority in this area needs no endorsement from me, and it is probably not necessary for me to say that I know both the authors, Debra Logan and John Bace. I am, of course connected with many of the names which appear in the Magic Quadrant as well as many who do not. Having pointed you to it, I do not feel the need to mention everyone who appears in it, sticking with those which illustrate some point beyond their bare appearance there. Continue reading →

Posted in CEIC, Clearwell, Discovery, eDisclosure, eDiscovery, Electronic disclosure, EMC, Epiq Systems, Guidance Software, IQPC, Nuix, Symantec | Leave a comment

Judicial Panel at CEIC has messages for other jurisdictions

Posted on May 28, 2011 by Chris Dale

Although primarily a forensics conference, CEIC, the Computer Enterprise and Investigations Conference, has an e-discovery track whose purpose is to raise awareness of the context in which data forensics are used beyond the law enforcement where they began. The cross-border panel  in which I took part was one aspect of this. Another regular feature is a judicial panel which was moderated, as usual, by Patrick Burke of Guidance Software.

The panel comprised former US Magistrate Judge Ronald Hedges, now a Special Master, US Magistrate Judge David Waxse and Hon. Donald E. Shelton, Chief Judge – Washtenaw County Trial Court, Ann Arbor, Michigan. Ron Hedges also introduced his pink friend, seen in the photograph below, but we never got to find out what his contribution was to the debate – the others had more than enough to say in the 90 minutes allocated.

CEIC Judicial Panel

These inevitably focus on practice under the Federal Rules of Civil Procedure. Some terminology apart, however, what was said applies equally in any jurisdiction Continue reading →

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UK Government bids for a world-class legal reputation whilst neglecting the basics back home

Posted on May 27, 2011 by Chris Dale

MoJ paper - Plan for growthThe UK Ministry of Justice has launched a paper called Plan for Growth: Promoting the UK’s Legal Services Sector. The opening, at least, is admirably crisp for a civil service document:

It identifies the law as one of Britain’s strengths….

People turn to us because they know they will find world class, highly specialised practitioners and expert judges in the specialist courts. They understand that a decision from a court in the UK carries a global guarantee of impartiality, integrity and enforceability.

…. which is a major contributor to the economy….

These strengths help to explain why the Legal Services sector generated £23.1 billion or 1.8% of the UK’s gross domestic product in 2009 and constituted £3.2 billion in exports – nearly three times more than a decade earlier.

….but which faces competition:

…worldwide competition for legal services is set to intensify over the coming decade. New York, Stockholm, Paris, Geneva, Dubai, Singapore and Hong Kong all stand ready to compete with London and other UK jurisdictions as a hub of legal expertise. While the UK’s excellence and reputation is undoubted, costs and speed may affect where companies choose to resolve their disputes. We intend to do all we can to protect our competitiveness and build on our success.

Steps are to be taken as part of the Government’s Plan for Growth…

the Ministry of Justice is committed to working closely with UK Trade & Investment and the sector to promote the UK as the global centre of legal arbitration and commercial law services.

As part of this we have a fine new Commercial Court building:

Dedicated, high-spec business court under one roof – the Rolls Building brings together the Chancery Division, Technology and Construction Court and Commercial Court under one roof, offering a streamlined service to businesses and maintaining the UK’s reputation as first choice for business law. Continue reading →

Posted in Court Rules, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Lord Justice Jackson, Ministry of Justice, Singapore | Leave a comment

EU-US EDiscovery – Data Transfer Role-Play at CEIC

Posted on May 23, 2011 by Chris Dale

One of my reasons for going to CEIC 2011 in Orlando was to take part in a panel about international EDiscovery. The panel was called International EDiscovery: Data Protection, Privacy and Cross-Border Issues and was led by Patrick Burke, Assistant General Counsel at Guidance Software. The rest of the panel consisted of Conor Crowley of the Crowley Law Office, Dominic Jaar of KPMG.

One is well used to the idea that different jurisdictions have different discovery rules, and we may sometimes find other peoples’ rules incomprehensible. Someone at CEIC described the UK disclosure obligation to me as “I’ll give you what I feel like giving you”. That is not a description we recognise, but we can see that our rules (which require a lawyer to disclose all documents which are supportive or adverse to the case of his own client and of any other party) appear as treason to those from a jurisdiction where the scope of a Request is a fiercely fought over. For our part we think of the US approach as “Gimme everything you’ve got which might have any bearing on anything which might conceivably be relevant to the issues or I will have you sanctioned”. US lawyers see that as fighting hard for their clients; we see it as a grotesque waste of time and money. Chacun à son goût – we can each play as we like in our own playgrounds. Continue reading →

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AccessData EDiscovery Conference in Frankfurt on 7 June

Posted on May 23, 2011 by Chris Dale

I am very much looking forward to speaking at and moderating an EDiscovery conference run by AccessData at the impressive Schlosshotel Kronberg near Frankfurt on 7 June. The programme is here.

The speakers come from Siemens AG, from a US and UK law firm, from providers of professional services connected with EDiscovery and from AccessData itself – CEO Tim Leehealey is coming. My opening will include a round-up of developments in other jurisdictions and the changing roles of company lawyers, outside lawyers and technology providers. One of the law firm speakers is Vince Neicho from Allen & Overy who will describe developments in UK e-Disclosure.

US lawyers become involved with electronic discovery in Germany largely because of the privacy and data protection implications which arise when they are managing US litigation and regulatory investigations. I was part of a panel in the US recently which dealt with these questions through role-play, and my part was as in-house counsel for a German subsidiary of a US company. It was no accident that we choose Germany – it is a major trading partner with the US and has increasingly strict privacy laws. The increasing interventions by various arms of the EU Commission bring their own demands for discovery; the UK Bribery Act affects any company with a UK presence; purely domestic disputes may not bring formal discovery requirements on the scale demanded in the US or UK, but German companies and their lawyers cannot avoid the fact that the evidence lies in electronic form.

This is a packed program, starting with a welcome and introduction from me at 13.00 and ending with dinner at 20.00. To book a place, send an e-mail to Charity Wagner cwagner@accessdata.com as soon as possible.

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Two more Bribery Act sessions with LDM Global

Posted on May 23, 2011 by Chris Dale

LDM Global has two more Bribery Act events coming up this week, following the one which I moderated for them recently.

The first is on Wednesday 25th of May at 4.00pm BST and is a webinar given by LDM Global General Counsel, Don MacFarlane and by Robert Bond, a partner at Speechly Bircham.

The second is given by the Institute of Directors City Branch on Thursday, 26 May at 6:30pm at the offices of White & Case. Speakers include Vivian Robinson QC, outgoing General Counsel for the Serious Fraud Office, John Burbidge-King, CEO of business reputation and risk management experts Interchange, and Don MacFarlane again.

You can find details about both of these events on LBM Global’s Upcoming Events page.

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EDisclosure Re-Discovered in Birmingham with First Advantage on 25 May

Posted on May 23, 2011 by Chris Dale

I will be in at the Hotel Du Vin in Birmingham on the afternoon of Wednesday 25 May talking about EDisclosure with Drew Macaulay of First Advantage Litigation Consulting. Our chosen title is EDisclosure Re-Discovered. The agenda for the event is here and there is a summary here. Send an email to info@fadv.com to let Drew know you are coming.

We are running the session twice and there is still room if you care to join us. We aim to keep it informal, with plenty of time for questions and discussion – and there will be no software demonstration.

Birmingham is home to the Costs Management Pilot initiated by Lord Justice Jackson and to various initiatives by HHJ Simon Brown QC to focus on proportionate costs and client objectives as well as on the downsides for those who do not know the rules. Amongst other things, we will talk about the eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire.

We look forward to seeing as many of Birmingham’s litigation lawyers as possible on Wednesday.

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Craig Ball Entertains at CEIC 2011 on Computer Forensics for Lawyers

Posted on May 23, 2011 by Chris Dale

I choose my words carefully when I write, and nowhere more than in the headings to articles. It took me 10 seconds to decide that the word “entertains” would form part of the heading to this post. “Entertains”, “Forensics” and “Lawyers” might appear to be mutually exclusive terms. Add the fact that Craig Ball’s session lasted for two and a half hours across lunchtime on a sunny Sunday in Orlando, the entertainments capital of the world, and you would think it remarkable that anyone could hold a large audience. Craig pulled it off.

Craig BallThe venue was CEIC 2011 or the Computer Enterprise and Investigations Conference to give its full name. The title of Craig’s session was Nerdy Things Lawyers Need to Know About Computer Forensics and a Few Nerdy Things Forensics People Need to Know About the Law. I have pages of notes, but I do not intend to summarise the whole thing. A few points will give you the flavour of it.

Many important things are very dull, and the standard recitals of information volumes – how many Gb per typical user and what that converts to in paper for example – is one of them. Here is one to grab your attention: take every word you ever read, every piece of evidence you have seen, and every phone book, cereal box, and road sign; add the text of every conversation in which you have taken part, the lyrics of every song you have ever heard and the script of every movie or television series you have seen. All that would fit on the smallest hard drive you could buy, with room to spare. Other media forms add volume – we are constantly photographed, and financial transactions are tracked; GPS allows our movements to be traced, and all this is in addition to information which we choose to publish about ourselves on FaceBook or whatever. Continue reading →

Posted in CEIC, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Forensic data collections, Litigation, Predictive Coding | Leave a comment

The Bribery Act – time to review Information Management

Posted on May 22, 2011 by Chris Dale

In the short gap between IQPC in London and CEIC in Orlando, I was invited to join a panel at Pinsent Masons on the Bribery Act, one of a series organised by Barry Vitou of Pinsents and thebriberyact.com.

You will see from Barry’s report of the session that the panel comprised himself, barrister Richard Kovalesky QC, Howard Sklar from information software company Recommind, and me. The differing viewpoints of Barry and Howard appear from their respective web sites, Howard’s at the Open Air blog and Barry’s at thebriberyact.com, and are touched on in Barry’s report. I want to expand a little on what I said about the information management aspects.

Information Management

This is one of those high-level terms which could mean anything. The suggestion is not that companies should set about a ground-up comprehensive records management programme because of the Bribery Act (I am not saying they should not do that anyway, but that big undertaking will be too much, and too late, for the immediate risk). Managing information is a component of managing risk; risk varies from company to company and (as Barry reminded us) between jurisdictions and sectors. The “information” to which I referred was the data which relates to identified areas of risk; “management” means knowing what you have got, knowing how to find what you need, and being able to distinguish between what is important and what is not. And “important” is a dynamic concept – you don’t know today what will be important tomorrow. Continue reading →

Posted in Bribery Act 2010, Discovery, Document Retention, eDisclosure, eDiscovery, Electronic disclosure | Leave a comment

Getting on with the basics at CEIC as the eDiscovery world spins a little faster

Posted on May 20, 2011 by Chris Dale

I could sit here all morning trying to come up with a succinct heading which captures everything which is going on in eDiscovery / eDisclosure at the moment. The big things happening at a corporate level have greater long-term significance than mere changes of ownership, but the conferences, the articles, the cases and the rest don’t stop because of them. I have been at back-to-back events – IQPC in London and CEIC in Orlando, with a panel about the Bribery Act at Pinsent Masons with thebriberyact.com in between; there is more coming up. My heading, workmanlike rather than inspired, reminds us that this everyday stuff goes on daily whilst a bigger game plays out in corporate board-rooms.

I wrote up IQPC before I left for Orlando and will write about the Pinsents event and CEIC shortly. I rarely post things (or even tweet) when I am away, and this short piece is just to confirm that I am still (or again) at my post. The sentry duty analogy is deliberate: just before I left, Autonomy bought Iron Mountain’s digital assets; Gartner’s Magic Quadrant for eDiscovery Software came out whilst I was in Orlando; I had just parted company with Eddie Sheehy of Nuix when the announcement came through of a major investment in Nuix; I dropped off for a few minutes yesterday evening (I don’t need much sleep, but whole nights spent flying have to be made up somewhere), and woke to discover that Symantec has agreed to buy Clearwell Systems (the links are to their respective announcements); the wires are full of Recommind’s announcement of a partnership with email archiver Smarsh. The international ediscovery world is spinning faster than it did last week.

These are all interesting and important and I will come back to some of them in due course. Much of it is analysts’ territory, and I am concerned more with the nuts and bolts of e-discovery / e-disclosure – what judges are thinking, what lawyers should be knowing and doing, and what practical problems face them. I will let the news stories simmer whilst I catch up with what I have been hearing and speaking about at the hands-on level. They are different strands of the same story anyway – the continuum from email archiving through to ediscovery for litigation and compliance purposes appears in both the company stories and the day-to-day practical stuff. Continue reading →

Posted in AccessData, CEIC, Clearwell, Data privacy, Data Security, Discovery, e.law International, eDisclosure, eDiscovery, Electronic disclosure, Epiq Systems, FTI Technology, Guidance Software, KCura, Nuix, Recommind, Symantec | Leave a comment

UK and US EDisclosure / EDiscovery and Compliance Commonality at IQPC London

Posted on May 14, 2011 by Chris Dale

There was something for everyone at the IQPC Document Retention and EDisclosure Management Summit in London this week. The Bribery Act gave added incentive for those responsible for information management within organisations; at the other end of the process, prosecutors and judges from the US and the UK emphasised that the target is not merely formal compliance with court rules but business objectives and business efficacy; in between, the technology begins to appear – at last – as a tool to support the business and procedural requirements and not, as it used to, as a free-standing objective of its own.

We have also finally eradicated the impression that US judges, providers and practitioners are missionaries come to civilise a backward race. We are all in this together, thanks to four specific facets of globalisation: the need to collect data worldwide and the privacy conflicts which that brings; the fact that the dominating new technology for creation and dissemination of data (of which Twitter and Facebook are but two examples) goes global immediately; the convergence of thinking on court-led procedural matters such as co-operation and proportionality; and now the Bribery Act, matching and exceeding the reach and the implications of the US Foreign Corrupt Practices Act. One US visitor said that she had gone away from a previous conference wondering why she had crossed the Atlantic simply to hear other Americans speak; there are still plenty of them here, but their contribution now brings a world view, not merely a US one, to what has become a much more collegiate group of experts.

As always, I went to relatively few sessions beyond the six in which I took part because I use these events as an opportunity to talk to as many people as possible. I mention this not merely to justify my failure to report comprehensively on the whole conference but to emphasise a hidden value in these events, and an overlooked justification for time taken out of the office. Unclear about some particular technology and whether it its use is likely to be acceptable in a court? Talk to a few people who provide it and then to a judge. Not sure whether your company is ahead or behind others in compliance matters? Have a chat with people who hold parallel roles in other companies. There is much more to these events than one-way communication from the platforms. Continue reading →

Posted in AccessData, Bribery Act 2010, Clearwell, e.law International, Electronic disclosure, Epiq Systems, Ernst & Young, First Advantage, FTI Technology, Guidance Software, IQPC, Judges, Kroll, Litigation costs, Recommind, Symantec, ZyLAB | Leave a comment

All set for the IQPC London Document Retention and e-Disclosure Summit

Posted on May 7, 2011 by Chris Dale

I do not see much point in describing in detail which sessions look interesting over the three days of IQPC’s Information Retention and e-Disclosure Management Summit, which starts at the Brewery in Chiswell Street on Monday. It is a packed programme, offering serious choices between competing sessions. Even if you are not going, I recommend running your eye down the listings for the three days. They serve as a list of topics which ought to be on the agenda of anyone with a legal or information management function in a company and of those who advise them.

The first day, Monday, consists of six workshops of three hours each. Between them they cover building e-disclosure teams, cross-border disputes, early case assessment, proportionality, compliance, and the deceptively simple question “Where is the data?”. The speakers come from major players in the UK, EU and US litigation and investigations and the three-hour time slots offer interaction with the audience which is not always possible in the standard sessions. I did one last year; the time flew by and the panelists, as well as the audience, gained much from taking part.

The Tuesday sessions put a strong emphasis on regulatory requests and investigations and on information management, with a single track in the morning and three tracks in parallel in the afternoon. There are, again, some strong speakers here with hands-on experience at the highest level and some serious conflicts when it comes to choosing which of the afternoon sessions to attend.

My own decision-making, at least, is rather easier on Wednesday since I am involved in some of the panels myself. We open with the by now traditional US-UK judicial panel with Judge Peck, Judge Grimm and Judge Facciola from the US, and with Senior Master Whitaker and His Honour Judge Simon Brown QC flying the UK flag. Patrick Burke of Guidance Software moderates as usual.The key words in the session title are “providing effective leadership” and that is what we get from these five judges in their respective jurisdictions. It is perhaps not appreciated how significant this annual panel has been in generating valuable and practical understanding which informs judicial thinking on both sides of the Atlantic. I attend the equivalent panels in the US, and the trade in e-discovery / edisclosure ideas is now two-way. The UK is the second-largest legal market in the world, and no-one took any notice of us on this subject four years ago. Continue reading →

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Metropolitan Corporate Counsel interviews Equivio on Processing and Proskauer on Compliance

Posted on May 3, 2011 by Chris Dale

The only direct connection between the two articles referred to in my title are that they both appeared on the Metropolitan Corporate Counsel website yesterday. An interview with Warwick Sharp of Equivio is headed The processing mountain was blocking the view – new mountains to climb in e-Discovery. An interview with Anthony Pacheco of Proskauer is called The FCPA and UK Bribery Act: Compliance Programs essential.

There is another connection – they are both superlative articles of their kind, and on subjects which are topical and important. I have done an interview with Metropolitan Corporate Counsel for such an article. It took more than two hours, mainly because the interviewer was genuinely interested in the subject matter, not just knocking out copy to fill some space.

I see no point in summarising either of the articles, hoping that you will accept my recommendation that you read them. Warwick Sharp once told me something he was told at university: you know that you have described something adequately if you have explained it to your mother and heard her explain it to somebody else. One’s mother, in this context, stands for anyone who is unfamiliar with the subject-matter. If that is your position in relation to predictive coding, then Warwick’s interview will fill the gap for you. I particularly like his conclusion that law firms are the potential winners not, as they might think, the losers, from the adoption of technology of this kind.

I found both of these articles through Twitter – it would be more correct, in fact, to say that they found me, because they turned up in my screen on being tweeted or retweeted by someone whose recommendations I rely on. I retweeted them in turn, but that is because I choose to be an active rather than a merely passive user of Twitter. There are many reasons why you may have decided that Twitter is not for you. It is worth stressing that you can get enormous benefits from it as a purely passive user, selecting a few people to follow and reading linked articles which appear to be relevant to you. You may get drawn into the discussions and you may go on to use Twitter as a communication tool of your own, but many people use it simply to get timely and targeted information about things which interest them.

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LexisNexis e-disclosure webinar pulls in the crowds

Posted on May 3, 2011 by Chris Dale

2090 people registered to watch a video webinar on e-disclosure and privilege last week. That is, apparently, the highest number for any of the successful LexisNexis series of such webinars and presumably reflects the growing interest in electronic disclosure.

The moderator was Professor Dominic Regan. Barrister Shantanu Majumdar of Radcliffe Chambers spoke on privilege and my subject was the e-disclosure Practice Direction and Electronic Documents Questionnaire which took effect on 1 October 2010.

eDisclosure

I have always been happy to leave the subject of privilege to the lawyers – my interest is in the use of technology which delivers electronic documents to the experts for review and which makes it easy for them to identify and flag privileged documents in the same way that they indicate relevance or the allocation to an issue. Between you and me, I generally use the privilege sessions at conferences to nip out for a smoke and a chat with whoever is passing.

You cannot do that when you are wired into a studio in front of four video cameras, and I am glad I listened as Shantanu took us through legal advice privilege and litigation privilege. My recollection of my training is that we are given some broad instruction of the “you will know a privileged document when you see one” kind. Even in those innocent days long before Three Rivers District Council v The Bank of England and the cases which followed it, the subject deserved more precision. Continue reading →

Posted in Court Rules, Discovery, eDisclosure, eDiscovery, Electronic disclosure, LexisNexis | Leave a comment

The uniting and dividing power of a British Royal Wedding as shown on Twitter

Posted on May 1, 2011 by Chris Dale

I got my first hint of US interest in the Royal Wedding soon after it was announced. I was the only British representative at a Washington conference, and stood up to make some worthy point at a judicial panel. One of the judges called out “Hey, it’s Chris Dale. He’ll get us all tickets for the royal wedding”. I am not sure that anyone in the UK had really started thinking about tickets at that point.

If we came late to our own party, as it were, we made up for it on Friday, with 500,000 people crowded in the Mall and millions (some said billions) watching on television or keeping in touch via the Internet. Tweets raced by faster than one could read them, but it was possible to catch the general tenor and to see the polarisation into about a dozen different viewpoints.

The women focused on the dress and The Kiss. For men, the front view of the Lancaster as it came down the Mall and the rear view of the Maid of Honour as she went up the Abbey steps were the dominant subjects of interest. The women were more forthright in intimating their personal wishes with regard to Prince Harry than the men were with respect to Pippa Middleton, though both were united in predicting a second Windsor-Middleton union before the night was out (I hasten to add that I am a merely a rapporteur in this context, neither approving nor disapproving of what I noted in the Twitter stream).

The overwhelming majority of the tweets expressed good wishes, approval and other generally positive sentiments, including a fair number who emphasised that they had not intended to be drawn in but were now hooked. What interested me more, in a way, was the minority who expressed contrary views. There was the usual lefty tosh about money being “wasted” on the rich and privileged which could be spent on [insert your own deserving cause/bottomless pit/socialist dream here]. The most fanciful figure which I saw was given as the cost of the wedding was £50 billion which confirms that ignorance is no bar to the right to comment on Twitter (and nothing I say below implies anything different – disagreement with people gives no right to refuse them their say, though I doubt they would reciprocate such freedom of expression if their drab, grey time were to come). Continue reading →

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The SFO’s loss is McGuireWoods gain as Vivian Robinson resigns

Posted on April 30, 2011 by Chris Dale

The UK’s Serious Fraud Office, already beleaguered as the government tries to make up its mind about its fate, has now lost its General Counsel. The widely respected Vivian Robinson QC is said to be going to McGuireWoods, leaving the SFO in the summer.

Vivian Robinson QCIt was hearing Viv Robinson speak, at IQPCs Munich conference last December, that got me interested in the Bribery Act. My focus is not so much on the possible prosecutions as on the additional, and very pointed, pressure which the Bribery Act puts on companies to pay attention to information management as one of several aspects of risk management and compliance deserving new attention. The specific point lies in the corporate offence of failing to prevent bribery, and its defence that the company had “adequate procedures” in place to anticipate and prevent bribery. This has many facets, but one of them parallels the view given by His Honour Judge Simon Brown QC in Earles v Barclays Bank to the effect that “potential litigants … need to anticipate having to give disclosure of specifically relevant electronic documentation and [have] the means of doing so efficiently and effectively”.

An article on thebriberyact.com, run by Barry Vitou of Pinsent Masons and Richard Kovalevsky QC, reporting Viv Robinson’s departure, draws attention to the uncertainty already surrounding the SFO’s future. As with so many other things, the government’s enthusiasm for decisiveness seems to pre-empt the application of any real thought – that is how we come to decommission the Ark Royal – the perfect floating hotel-cum-airfield – just as we incur four years’ worth of its running costs in accommodation bills for the forces engaged in Libya.

thebriberyact.com article gives some observations on the position of the SFO as Vivian Robinson prepares to leave. It links in turn to a thoughtful article in The Lawyer which gives a good summary of the political context and the implications of the decisions (or lack of them) which affect those interested in bribery, corruption and fraud.

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Judge Grimm on ignorance of ediscovery rules and lack of consistency from courts

Posted on April 28, 2011 by Chris Dale

A high proportion of e-disclosure / ediscovery disputes in both US and UK courts arise because one or both of the parties does not know what target it is supposed to reach. This generally stems from one of two causes — they do not know the rules and they do not know what they might expect from the court in an area in which judicial discretion plays a large role.

The rules point seems pretty obvious to you and me although not, apparently, to the many lawyers on both sides of the Atlantic who fall foul of the rules each year and who do not know the cases. The consistency point is more subtle but just as significant. A solicitor once told me of a case where he and his opponents had argued (presumably expensively) for weeks before going to the court for directions. The answer came quickly and was not precisely what either of them wanted, but it cut through the argument and allowed them to get on. “If only we had known what to expect” they said, making the point that the argument could have been avoided if they had had some idea of the kind of orders available from the court. Consistency is, in a sense, antithetical to discretion, but we do need to be able to anticipate what kind of orders we might get.

These two factors, knowledge of the rules and consistency from the courts, are identified by chief US Magistrate Judge Paul Grimm in an article in the University of Richmond’s Journal of Law and Technology (JOLT). His immediate context is the two-year old Federal Rules of Evidence 502 which aimed to encourage lawyers to co-operate to reduce the costs of production of electronically stored information.

This article reached me via a posting by Monica Bay on the revived EDD Update and I refer you to that rather than directly to the JOLT article so that you get the benefit of Monica’s commentary on the way.

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Clear and convincing evidence needed to show contempt in intimate pictures case

Posted on April 28, 2011 by Chris Dale

I am writing my annual play for US and UK judges to perform at IQPC in London. The purpose each year is to sweeten the pill of e-disclosure didacticism with some light humour. If I always cast the US judges as the good guys delivering pearls of wisdom from the bench, that is because we are good hosts and polite to our guests, not a judgment on the relative merits of the two systems.

Last year, the play virtually wrote itself – we had had a run of UK cases, some of which defied parody and required no embellishment to raise a laugh. The only case of note in the last twelve months has been Rybak v Langbar where the claimant’s case was struck out because file deletion software was used between the date of the order for delivery of his computers and the actual delivery. In a painstaking judgment, the judge concluded that the claimant had deliberately destroyed data and that “it must have been judged by him to be adverse to his case and potentially beneficial to Langbar’s case”. He would not permit claimants to “ask for a judicial determination on the evidence that they have chosen to put before the court, without the evidence that they have chosen to deny the other party and the court”.

I wrote about the case here and subsequently picked up on an article by Craig Ball called Double Delete Doesn’t Do It.

The setup for a scene in the play about these issues involves comparison between US courts, where heavy sanctions for destruction of data are common, and those in the UK where they are rare. The Rybak case in fact says little about the general duty of preservation and disclosure because it involved the breach of an “unless” order. The factual findings (as to the use of the file-erasing application and as to the intent) showed a breach of the order, making it unnecessary to reach a conclusion as to pure disclosure principles. Continue reading →

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ALRC Update on the Australian Discovery Inquiry

Posted on April 20, 2011 by Chris Dale

Patrick Collins, Senior Legal Officer of the Australian Law Reform Commission, made a presentation at an ediscovery conference in Melbourne last week. I don’t miss many common law ediscovery conferences, but I was not at this one, and I am obliged to Geoffrey Lambert of e.law for pointing me to a summary of Patrick Collins’ presentation.

I noted in a recent post about a Singapore case that those of us concerned with the development of eDisclosure / eDiscovery rules watch closely what is happening in other jurisdictions. Some of us who were involved in the new UK e-Disclosure Practice Direction 31B – Senior Master Whitaker, Vince Neicho of Allen & Overy and me – were pleased to be invited to give some input into the consultation phase of the Australian Discovery Report, and will be equally pleased, in due course, to see what recommendations emerge and find favour – it all helps inform our next round of discussions.

I see, incidentally, that our Ministry of Justice has a pretty new web site, and has redirected existing urls to an archived copy. I am sure that makes sense for them, but those of us with links into the site will have to change them all. Since I make a point of linking to the rules and the PD every time I refer to them, that is somewhat tiresome.

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Epiq joins the NLJ for a roundtable discussion on costs and case management

Posted on April 20, 2011 by Chris Dale

The New Law journal is running a series of roundtable discussions on various aspects of litigation and dispute resolution. I have my eye on the events in this series because I am due to take part in one shortly. Quite apart from the quality of the participants, the NLJ produces attractive, readable reports of what was said.

A recent one addressed the subject of costs and case management (see NLJ Roundtable Costs and Costs Management). The significance of e-disclosure as part of this subject was evidenced by the presence of Greg Wildisen, International Managing Director of Epiq Systems, who has shown a consistent interest in the context of rules, procedure and costs as well as in the technology and services which Epiq provides.

Also present was Andy Ellis of costs specialists Ellis Grant. I feel that I knew him quite well although we have never actually met – we follow each other on Twitter and his office is at the opposite end of the High Street from my late father’s office in Wanstead where I started my articles of clerkship several decades ago.

Others present included solicitor David Green of Edwin Coe, Mark Hill QC of Pump Court Chambers and Jeremy Hill of LexisNexis

E-disclosure seems to have dominated the discussion. The panel focused on two aspects of particular importance. One is encapsulated in the comment by Mark Hill: “Save for a few judicial techno-nerds, nobody has the slightest idea what e-disclosure is all about. The early warnings have been largely ignored”. [My original report on this merely passed this quotation on without comment. I meant to add my view that the sentence about “a few judicial techno-nerds” both under-estimates the number of judges who know very well that electronic documents must be dealt with properly, and perpetuates the false idea that a deep knowledge of technology is required to manage them. Judges need only to have a broad idea of the technology solutions and to require parties to show that they have examined the costs and other implications of using them].

The other point will be familiar, if only because by chance, I dictated a reference to it a few minutes ago in my report of a Singapore judgment. The sentence which catches my eye is “For litigators there is a natural propensity to leave “no stone unturned” when engaging in discovery and it is this mindset that the panel agreed needed challenging.”. Paragraph 46 of Digicel v Cable & Wireless and its cross-reference to paragraphs 44-52 of Nichia v Argos deserve this exposure.

There was discussion about keyword searches and other, more sophisticated, search techniques, and about the costs management trial being piloted in the Birmingham which is covered in a panel on page v of the report. The advantage of assembling a cross-disciplinary panel like this is that all these inter-related subjects come up at once – you cannot sensibly discuss technology without also bringing in the management of costs and the broad subject of lawyer and judge education.

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Audio Search and Geolocation from ZyLAB

Posted on April 20, 2011 by Chris Dale

Two new developments from ZyLAB are worth passing on. In contrast to some players in this market, ZyLAB produces press releases which are short and to the point, without the boilerplate wrappers so beloved of others which set you nodding off before you reach the bit which counts. I will leave you to read them for yourself.

One is the ZyLAB Audio Search Bundle which allows quick identification of relevant sound clips from multimedia, fixed line telephones and VoIP. The aim is to make audio collection as easy to find, review and analyse as other forms of electronic data.

The other involves the capture of geolocation data from those devices which use it, either for simple research in its own right or to match it with other data (e.g. the text from e-mails) in order to analyse all the sources together, perhaps to compare with witness evidence. The results can be plotted on Google maps.

I wrote only a couple of days ago about how FTI Technology can cross-match statistical and financial information against textual data. This is a parallel concept. In both cases the separate sources of data are useful in their own right but become infinitely more valuable, potentially saving months of manual cross-checking, when combined in this way.

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Singapore case – Specific Discovery – Sanae Achar v Sci-Gen Ltd

Posted on April 20, 2011 by Chris Dale

A new case from the Singapore High Court involves an appeal against an order for specific discovery of documents. The case is Sanae Achar v Sci-Gen Ltd
[2011] SGHC 87  The appellant lost and was ordered to disclose more or less what had been demanded. She was ordered to pay costs fixed at $1500.

For now, I will leave you to read it without much commentary from me – my focus at the moment is on conference preparations and interesting and important distractions turn up every time I turn back to what I am really supposed to be doing. In reading it you will note that the rules are very close to their equivalents under the CPR of England & Wales. This was no accident; apart from our shared common law tradition, the Singapore courts watch closely what happens in other jurisdictions and are shrewd to adopt, at a steady pace, those procedural measures which seem to work elsewhere. We do the same, which is why judgments like this are of interest. They have sensibly stuck with the word “discovery” and (a point of sentiment to those of us of a certain age), the discovery rules appear in Order 24, as ours used to.

I will draw attention to one point dear to my heart. The judgment ends with a reference to the passage at paragraph 46 of Digicel v Cable & Wireless in which Morgan J adopted Jacob LJ’s point in Nichia v Argos about unturned stones and smoking guns (see paragraphs 44-52 of Nichia). As quoted in the Singapore judgment it reads:

[T]he [discovery] rules do not require that no stone should be left unturned. This may mean that a relevant document, even “a smoking gun” is not found. This attitude is justified by considerations of proportionality

I quote this in almost every talk I give, and see it as the single most important paragraph in any judgment about disclosure.

My thanks to Senior Assistant Registrar Yeong Zee Kin of the Singapore High Court for drawing my attention to this judgment to which, as I say, I will revert in due course.

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You do not need the fear of sanctions to get value from legal hold software

Posted on April 19, 2011 by Chris Dale

I am doing a panel session on Day 2 of the IQPC Information Retention and EDisclosure Managemement Summit with Ronke Ekwensi of Pfizer. Our subject is ESI preparation and preservation: Assessing – and addressing – your eDisclosure Liabilities. One of the aims is to cover the differences between the US and the UK approaches to preservation and to legal hold and I have been putting some slides together. It seems worth giving it a preliminary canter here.

Clearwell is the latest US ediscovery software company to produce a legal hold module, the logical extension to the existing components of its EDiscovery Platform. This is becoming a standard component of ediscovery applications – Guidance Software was, I think, the first to integrate such a module over two years ago.

A US lawyer needs no explanation of the importance of legal hold. It formalises the duty to preserve documents and records that an organisation “knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation”. This quotation comes from Mosaid v Samsung of 2004 and remains a good base definition although a lot of water has flowed under the bridge since then. Critics complain of the use of the word “reasonably” in qualifying both the expected state of knowledge and the degree of foreseeability, but none has come up with an alternative way of defining the trigger for preservation (though serious attempts are being made to improve on this).

The formal trigger in England & Wales is the issue of proceedings. Destruction before issue brings penalties only in limited circumstances involving an objective to interfere with future litigation and a positive act as opposed to an omission; further, the documents must be relevant ones, that is, ones which might have made a difference. The key issue is whether a fair trial is possible despite the destruction of the documents. Taking all this together, it is quite hard to attack another party for alleged spoliation before the commencement of proceedings. That said, the parties and their lawyers may have to explain what became of “missing” documents and to justify their destruction.

There are differences between the scope of US discovery and UK disclosure. “Relevance” in the US includes information which is reasonably calculated to lead to the discovery of admissible evidence, where the post-1999 UK definition is the potentially much narrower test whether documents are supportive of or adverse to the case of the giver or of any other party. Continue reading →

Posted in Clearwell, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FRCP, Guidance Software, Legal Hold | Leave a comment

LDM Global survey on common ediscovery errors and a new office in New York

Posted on April 19, 2011 by Chris Dale

LDM Global recently conducted a survey across the USA, Europe and Australia to find out what were seen as the most widespread ediscovery errors. Whilst the results will surprise no one, it is good to be reminded that the problems generally arise from relatively straightforward human failings. Top of the list were:

  • Failure to communicate across teams involved in the eDiscovery process
  • Inadequate and/or poorly implemented data retention policies
  • Failure to perform sufficient quality control

You can read LDM Global’s report here where you will also find a link to the full results of the survey.

LDM Global has also just announced the opening of a new office in Midtown Manhattan and a significant expansion of its presence and its staff in New York and the US East Coast.

The staff include Mike Petriella as Head of US Business Development and the transfer of Nathan Hughes who joins the New York sales team after five years with LDM Global in London. I thought Nathan looked more than usually content with life when I saw him in New York at LegalTech, and now I know why.

Although LDM Global has 7 international offices (and was established 15 years ago by the Australian O’Reilly brothers Greg and Chris) I always think of it as London-based because that is where I had my connection for most of those 15 years, and I get some pleasure from seeing its expansion “abroad”. It can only help the company’s trans-Atlantic business to have in Manhattan someone who has served time in London.

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Three webinars from Digital Reef

Posted on April 19, 2011 by Chris Dale

Digital Reef WebinarsDigital Reef, whose ediscovery, early case assessment and compliance software has recently brought them into the KMWorld List of 100 Companies that Matter in Knowledge Management, is producing three webinars over the next few weeks.

These are as follows:

Burst Capacity: the underbelly of the ediscovery beast on 27 April

Balancing in-house and outsourced ediscovery resources on 12 May

SaaS-based ediscovery, effective practices — lessons learned on 20 May

The registration pages for these events can be found on Digital Reef’s home page.

I had lunch in Oxford recently with Charles Lavallée, Digital Reef’s Director, Business Development – US & International, whom I have known since long before his move to Digital Reef. The plan was to show him round Oxford (these visits are the only way I get to see my own home city, so I appreciate them for that reason, as well as for the information I glean whilst doing it), but he had to go back to London earlier than expected. He will be back for the IQPC Information Retention and EDisclosure Summit in London from 9-12 May where Digital Reef is amongst the many exhibitors.

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Recommind Webinar – UK Bribery Act: Much Ado About Nothing, Or Game-Changer?

Posted on April 19, 2011 by Chris Dale

Recommind are presenting a webinar in conjunction with Inside Counsel on Thursday 21 April (that’s this week). The title is The UK Bribery Act: Much Ado About Nothing, Or Game-Changer? and registration is here.

The speakers are Mark Mendelsohn, Partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP and Howard Sklar, Senior Counsel at Recommind. Readers with long memories (see Twitter, bribery and 37 corporate counsel in a big virtual bar) may recall that I came across Howard Sklar when one of his articles was retweeted, and had started following him on Twitter (he is @HowardMSklar) before realising that he is at Recommind. Many good articles on the Bribery Act have appeared on his Open Air blog since then, including a series of critiques of the Guidance Notes. Tom Fox said this on his FCPA Compliance and Ethics blog:

How can one best describe Howard Sklar’s blogging; withering, skewering, contrarian; he describes himself as “a crusty, irascible curmudgeon.” Here’s how I would describe Howard – one of the best compliance practitioners and commentators around. His insights are great and he uses the right touch of humor and real-world examples to get his point across. His blog is great and a ton of fun to read so saddle up and enjoy the (compliance) ride.

A community of bloggers and tweeters has quickly grown up around the the Bribery Act – you will find your way in by using Tom Fox’s list linked to above. The participants do not always agree with other and don’t hesitate to say so, which is what gives the articles, and the accompanying Twitter banter, their edge.

I confess to doubts that Howard is quite the “crusty, irascible curmudgeon” he claims to be – I have only met him once and then only briefly, and found him no more curmudgeonly than I am (oh, all right – perhaps it is an occupational hazard). If his webinar is as thought-provoking as his writing, then it will be well worth listening to.

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Epiq’s acquisition of Encore gives the customer more choices

Posted on April 18, 2011 by Chris Dale

E-Discovery services and technology company Epiq Systems, Inc. has acquired Encore Discovery Solutions for $100 million cash. The press release is here. Most market comment has focused on the acquisition price and on the estimated 50% increase in the revenue of Epiq’s ediscovery business on top of the 92% achieved by its organic growth in 2010. The customers of both companies will be more interested in the range of options and in the increased depth which the acquisition brings.

A glance at Encore’s website shows clearly why Epiq see this as a good fit for them. Encore offers the full range of ediscovery services from data acquisition and analytics through to hosting, production and document review, and it is no accident that project management sits at the centre of the diagram on the Services page of the website. What caught my eye was the range of Strategic Alliance partners which Encore has, with the logos of Relativity, Equivio, Content Analyst, Clearwell, IPRO, EnCase, ICONECT, Wave and Concordance on display.

This was what I focused on when I spoke to Christopher Olofson, President and COO of Epiq Systems, Inc, and to International Managing Director Greg Wildisen, getting from them the sensible line “The customer does not get upset by having more choices”. Greg Wildisen emphasised that Epiq has always been a “services company with software” notwithstanding the fact that it is well known for its proprietary review platform DocuMatrix and its evidence processing engine eDataMatrix. Epiq’s own document review service is product-neutral, set up to generate output for the customer’s choice of destination. Full development of DocuMatrix is to continue.

There is almost no overlap between the customer-base of the two companies, and joining forces allows them to consider each matter and to make appropriate recommendations based on skill, complexity and budget. Encore’s customers will get access to Epiq’s service capacity, its international reach, its data centres and its fast-growing document review services. Epiq’s existing role as primarily a consulting and services business is reinforced by the range of options which the Encore acquisition brings it.

Most predictions for 2011 and onwards have anticipated consolidation in the market. Whilst I cannot say that I saw this one coming, Epiq’s organic growth in the last year made it a likely buyer of something appropriate to add to its capacity and its offering to customers. The complementary skills of the two companies suggest that one plus one is likely to yield very much more than two.

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Clearwell, ICE, FOIA and NDLON

Posted on April 18, 2011 by Chris Dale

If the jumble of names and initials in my heading means nothing to you then move along to the next article, because this one assumes that you know about it. If you do know about it, then I do not need to recite the curious story of the disappearing blog post and the subsequent retraction and apology. I watched the flow of critical comment which followed, all of which reinforced my initial reaction, which was to sit it out and await developments before joining in. I like to know how deep the water is before I wade into it.

I have seen enough of these stories to know that they have a reasonably predictable arc. For one thing, they never emerge in relation to unsuccessful companies; what gives them legs is the fear of competition, and no one bothers to attack the weak. For another, the rebuttals come in slowly, unlike in politics where much unhelpful heat is engendered by the frenetic need to get the counter-attack in at once. The critics are hampered by a lack of facts, the defenders by client confidentiality.  It is all part of the knock-about of competition, of course, and most of the players give as good as they get. Occasionally, the challenge of doing an elegant stiletto job on a rival can result in new ways of describing the benefits of one’s own product. The comments never seem to make the slightest difference to the market share of any of the players, however, inducing merely a “plague on all your houses” reaction from a generally mature audience whose buying decisions are made on much deeper grounds.

Twitter brings you every twist and turn as they happen. The trick is to filter the fact from the assertion, the partisan from the objective. The next development of substance (of apparent substance anyway) was the publication of the so-called Pavlik-Keenan Declaration which, as a formal court document declared “under penalty of perjury”, brought expectations of factual accuracy at the least. The fact that the relevant part of its story seemed inherently implausible did not put me in a position to argue with it. The comment around it was relatively muted, which suggested to me that others too were unsure how far the story would run.

Last week brought the expected article by Aaref Hilaly, CEO of Clearwell, headed Clearwell, NDLON v ICE, and the Pavlik Keenan declaration which, for the first time, allowed me to see both sides of the story (my degree subject was history, don’t forget, so I am predisposed to look for balance and the occasional solid fact). That referred to another court document, the declaration of Ryan Law which corrects those parts of the Pavlik-Keenan Declaration which struck me as implausible when I first saw it, and sets out some points which had been ignored in most of the earlier chatter.

I do not have to take sides, draw conclusions or make decisions. There is more to come on this one and, as I have suggested, a few hard facts are an indispensible component in any story. It was obviously necessary for me at least to mention it all at some point, but you will note that I have got to the end of my article without saying anything about the case itself. That is the trouble with these inter-provider spats – they take all our eyes off what really matters.

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Filling the day and nearly getting filled with lead

Posted on April 17, 2011 by Chris Dale

One of the influential figures in US ediscovery gets very cross at references to the “ediscovery market”, as if the commercial connotations somehow sully the purity of the context of rules and judges and justice which the ediscovery / e-disclosure industry supports. I am pretty keen myself on the “pure” side of it, and more widely than my ediscovery remit, which is why civil liberties and the relationship between rulers and ruled turn up in these pages from time to time.

The “market” side of it, however, is both integral to the delivery of justice and interesting in its own right, both in the delivery of legal services and in the technology which is my own particular concern. What I do touches on several different aspects – business processes, technology, the law itself, and marketing. Periodically, I am asked: “What exactly do you do?”. One of my children, when asked this question recently, said “He writes a blog”, presumably leaving the questioner little the wiser. What I do is, of course, of interest to others only to the extent that it throws light on the market. If I describe my day in London on Thursday, as I am about to do, it is because it touched a lot of industry corners, and not because my own diary is likely to enthrall anyone for its own sake. It nearly included a rather closer interaction between rulers and ruled than I generally look for. Continue reading →

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A Craig Ball anti-forensics article reminds UK readers of Rybak v Langbar

Posted on April 11, 2011 by Chris Dale

Thousands of words are written each week about e-disclosure / ediscovery. That old joke about today’s article is being tomorrow’s cat litter is hard to apply literally to electronic publication, but it is right to say that few of the many articles are read much after the month in which they were published. Many of those which do survive seem to be written by US forensic expert Craig Ball.

I predict a long life for his article Double Delete Doesn’t Do It published on Law Technology News on 1 April. I have deliberately included a reference to the UK case Rybak v Langbar in my title to emphasise that Craig’s article is as relevant in the UK as it is in the US – this is not true of all US articles, many of which depend on the peculiarities (I use the word in its widest sense, connoting distinctiveness rather than oddness) of US e-discovery.

One of my themes for 2011 is “What actually happens to your data”, reflecting my perception that many of the terms of art used in ediscovery / e-disclosure pass over their heads of those who need to understand what is actually involved. It is hard to avoid this in conventional marketing materials which must necessarily be punchy and succinct. Shades of meaning get lost by this abbreviation; whole subjects embracing a wide range of concepts get reduced to a single word or snappy expression. “Processing” is one example; “forensic collection” is another.

The broader sense of the term “forensic collection” implies that data is collected in a form which exactly matches the original. Whole servers, laptops and a range of other devices, including perhaps empty or slack space (don’t ask, not just now anyway), are copied to preserve the contents as they stood at the date of collection. The term equally applies to the collection of sub-sets, such as particular folders or the documents of particular custodians; it can apply to the examination of a single document. Forensics, though, goes further than mere collection and can include analysis and deduction – the adoption of the word “forensic” in computing science should not obscure its original meaning which, in my (pre-computer) dictionary is “of, used in, courts of law”. You may engage a forensics expert simply to ensure that data has been collected in a sensible manner; you may need him in a role more akin to that of a detective.

Craig Ball’s article describes the latter situation. He was engaged to examine the computers of a party to litigation pursuant to a court order as an independent expert. Part of that task involved technical tools and technical knowledge. Part of it simply involved informed observation – it is near-impossible anyway to conceal the use of disk-cleaning software like CCleaner, but leaving its icon on the desktop is a bit of a giveaway, like the bank robber who wrote his demand on the back of his own utility bill or the one who had his name stencilled in large letters on the motorcycle helmet used to hide his face. Continue reading →

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LDM Global seminar: The Bribery Act – an International Perspective

Posted on April 11, 2011 by Chris Dale

I moderated a panel last week at the invitation of LDM Global with the title The UK Bribery Act – an international perspective: how the act will apply to foreign organisations, operations and activities.

The panelists were Rose Parlane, senior associate at McGuireWoods, and Don Macfarlane, Head of Global Operations and General Counsel for LDM Global. Rose is a member of McGuireWoods’ anti-corruption group, much involved recently in briefing her clients on the Bribery Act, on how best to prepare for it and why it is important to do so. Don’s career has focused on international law, cross-border litigation, cost management and proportionality, and has worked as an in-house lawyer at BP as well as at large law firms.

I opened by drawing attention to the divisions of opinion provoked by the Bribery Act: some said it hampered competition whilst others claimed it was too weak for its purpose; the required degree of connection with the UK has been condemned as imprecise and as unfair to truly UK companies; the act is too broad or too narrow, too specific or too vague, depending on who is speaking. Given the very wide range of companies and activities, the spread of opinion perhaps indicated that we had got it about right, although it would have been nice if the government, the SFO and the courts were singing from the same hymn sheet as to enforcement. There was no point, however, in arguing with what the legislation said – we are where we are and must focus on what to do about it.

Rose Parlane gave us a brief overview of the act and its key provisions, and took us through the Guidance. The wording of the act has not been watered down and it is to the legislation that the courts will look first. The froth of comment about facilitation payments and entertainment had obscured the need for a careful risk-based approach which designed an “adequate” compliance program appropriate to the size of the company, its risk profile and its existing processes and systems. It was not necessarily a bad thing that companies needed to know about the people and entities with which they dealt.

Joint ventures, she said, remained a source of exposure. The trickle-down effect of compliance requirements imposed by contracting parties would, in many cases, be a more serious pressure than any realistic fear of prosecution. It was likely that we would see civil actions based on compliance failures. Continue reading →

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ZyLAB and the UK Bribery Act – Controlling the Impact on the Organisation

Posted on April 11, 2011 by Chris Dale

I was one of the speakers at a breakfast seminar last week with the title the UK Bribery Act – Controlling the Impact on the Organisation.The event was organised by ZyLAB whose products are designed, across the various modules, to manage information and compliance within an organisation, and to enable the extraction and disclosure of information when litigation, a regulatory or internal investigation or, as in our immediate context, a Bribery Act implication, affects a company.

The venue was Middle Temple Hall which, I am ashamed to say, I had not entered in the 32 years since I first worked in the area. Building began in 1562; Sir Francis Drake dined there in 1586, having recently returned from the New World with the surviving colonists of Roanoke in what is now North Carolina; the first performance of Shakespeare’s Twelfth Night was put on there at Candlemas in 1602. Middle Temple Hall was severely damaged by bombing in a 1941 bombing raid, though coming off better than the buildings which had surrounded it. It is worth going in just to see the photographs of the aftermath of the Blitz.

The event itself took place in two panelled rooms behind the Hall itself, one for refreshments and one laid out as a lecture hall, both overlooking the gardens running down to the Thames. It is quite a challenge to keep the attention of an audience which can look past you onto such a view, and to keep them awake when, as on that day, the sun was streaming in through the windows. I think we managed. Continue reading →

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Huron Consulting, LDM Global, Hobs Legal Docs and Recommind all move home

Posted on April 11, 2011 by Chris Dale

In case you are setting off for a meeting in London with Huron Consulting Group, LDM Global or Hobs Legal Docs, you may care to note they have all moved premises in recent weeks. Recommind has also moved, though I think I am late in catching this piece of information.

Nigel Murray and his team have moved from Trilantic’s former offices to Huron Consulting Group offices in the verdant pastures of the West End. Nigel is keen to point out that they are only twelve minutes from Bank Station in their new offices at One Connaught Place, London W2 2ET. The telephone number is still +44 (0) 207 042 1000 and the new web site address is http://www.huronconsultinggroup.co.uk

After many years in Great Eastern Street, LDM Global has moved south and taken larger premises at 11 – 21 Paul Street, London EC2A 4JU. The new telephone number is +44 (0)203 463 8444. The web site address remains http://www.ldmglobal.com

Hobs Legal Docs has also outgrown its old home and can now be found at 58 Farringdon Road, London EC1R 3BP. The telephone number is +44 3217 0300 and the web site address is still http://www.hobslegaldocs.com/

I seem to have missed the announcement that Recommind was moving its offices – I knew it was happening to cope with Recommind’s significant expansion recently, but missed the moment. The new address is 6 Snow Hill, London EC1A 2AY. The telephone number is +44 0207 002 7735 and the web site is http://www.recommind.com

This sort of information is vital for those who, like me, use the iPad map feature. That allows you to enter the name of the person or company to be visited and see immediately where they are on a map and how to get there from your present location or elsewhere. Tell it that you are going, say, from LDM Global to Huron Consulting and, if both addresses are in the iPad’s address book, it will show you the route. All we need, really, is that when people in our address books move offices, the updates are pushed at us automatically. Think how much time that would save us in a year in an industry in which people move from company to company, or when, as here, whole businesses move together with several of your contacts. I can think of better occupations on a sunny Sunday than updating addresses and, in the case of those whose email addresses have changed, the Outlook rules which apply to them.

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ILTA Insight 2011 in London

Posted on April 8, 2011 by Chris Dale

You may have noticed some recent diversification in the subjects which I cover. I have moderated a couple of US panels on law firm technology generally, written and spoken on the use of social media, and covered the Bribery Act. The latter has an obvious crossover into e-disclosure / ediscovery (one of my talks this week, for example, was entitled “UK Bribery Act adequate procedures: kicking information management up the agenda”); the others I do mainly because any pure e-disclosure talk or article will necessarily reach only those who are at least partially converted already, and these extra-curricular activities take me (and therefore my main subject) to new audiences. I enjoy doing them, but have no ambitions to challenge the pre-eminence of Charles Christian or Joanna Goodman in covering the broader field.

ILTA is the International Legal Technology Association, whose role (in its own words) is “sharing knowledge and experience of those faced with challenges in their firms and legal departments”. Its main annual event, this year from 21 to 25 August in Nashville, is an unbeatable opportunity to mix with people who share the same challenges as well as with those who offer solutions across the full range of legal technology including, but not limited to, the e-discovery/e-disclosure topic which is my primary interest. It would be good to see some more UK lawyers there this year.

ILTA runs a one day conference in London each year called ILTA Insight. It had no pure litigation content this year, but a wide range of other topics were covered on the agenda and it was, as always, attended by a diverse set of law firms. I imagine that Charles Christian’s Orange Rag will produce a proper report in due course, and I will content myself with three snippets picked up from the sessions which I attended: Continue reading →

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A new iPad WordPress App to foul up your blog

Posted on April 7, 2011 by Chris Dale

A Twitter direct message received this morning from Scott Gillard of Minter Ellison in Australia read:

Love the new iPad version of your blog. Nice job.

I did not know that there was a new iPad version of my blog and hastened to look. There is no new App (not, at least, one commissioned by me), but opening the blog in iPad’s browser gave me not my usual header but a full screen version of the photograph from my penultimate post with the words “e-Disclosure Information Project” superimposed on it.

There were a number of things wrong with this from my perspective. For a start, the photograph was of Indiana Jones and a cobra which, although relevant to the post in which I had placed it, is not necessarily the introduction I want to the blog generally (I don’t mind being mistaken for Harrison Ford, but would not want to be confused with the cobra). It did not help that the photograph had been expanded to fill the screen and was distorted. Swiping that aside, I found an exciting new layout for the headers for the last few posts. I should make it clear that “exciting” is not a compliment in this context – fine, perhaps, if your blog is of the “what I had for breakfast” variety, but not for a serious business site.

A little research suggests that WordPress is very proud of this new development, but also led me to the setting which allows me to switch this “feature” off. I resent the default being changed to give my users something I did not know they were getting.

I only discovered recently that WordPress sticks advertisements at the bottom of my blog. You do not see these in Admin mode, so I never got the full user experience. I spotted it on a page reporting Lord Justice Jackson’s less-than-complimentary views (which I share) on the type of solicitor who incites people to begin no-fee, risk-free litigation. The WordPress word-association technology worked perfectly, for there at the bottom was an advertisement for just such a firm. I think I can pay my way out of this embellishment and will do so when I have time for the mechanics, as distinct from the contents, of the blog.

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Blogging, Friending and Tweeting: what lawyers should and should not do

Posted on April 1, 2011 by Chris Dale

As Twitter reaches its fifth birthday, lawyers and ediscovery providers alike seem suddenly to be discovering its value as a tool for engaging with others. At a New York panel, I talked about some general benefits and pitfalls of blogging and tweeting, whilst the other panel members looked at issues specific to lawyers.

I am back from New York, where my primary purpose was to speak on a CLE panel at the invitation of the New York City Bar Association. The panel, called Blogging, Friending and Tweeting: what attorneys should and should not do, was moderated by Denise Backhouse of Morgan Lewis, and the other speakers were Jeremy Feinberg, Statewide Special Counsel for Ethics in New York’s Office of Court Administration, Ronald Minkoff of Frankfurt Kurnit Klein & Selz, PC, and Ronni Solomon of King & Spalding. Denise and I last did a panel together on data protection and privacy in Munich in December, and I came across Ronni in Singapore last year, talking about sanctions. I mention this to emphasise that none of us are “social media consultants” – we all do other things, and our talks were about our experiences and observations from real life. There was not a mention of Klout or PeerIndex or any of those arbitrary measures of “success” in social media.

All I care about is whether those who are interested in my subject can find me, will come back, and will tell their friends. That is not a bad starting point for lawyers, but they have overlays of ethics and professional conduct which complicate that simple starting proposition. They also have other factors – set ways, marketing departments and a culture carefully honed for earlier times – with which some compromise may be necessary.

I opened the session by explaining that most of my work involved the collection and dissemination of information about ediscovery / edisclosure. For me, therefore, blogging and tweeting is my occupation, not merely something ancillary to my occupation.  I am not accountable to anybody for what I say, but I nevertheless have some self-imposed rules: there is no point in being anodyne – a certain spikiness is needed; don’t assume that people will read every line but write as if they might; if you seek to be authoritative, then it is worth checking the facts and following basic journalistic rules like distinguishing between fact and commentary; there is no point in blogging if you don’t have opinions and passion, and no point if you can’t write. Continue reading →

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Back from New York and competing with a cobra

Posted on March 31, 2011 by Chris Dale

Indiana Jones and the CobraBefore I get any more queries of the “Why no new posts?” variety, I have been in New York for a week, primarily for a panel on blogging, tweeting and friending, and for a webinar. It was the week that the UK Bribery Act guidance notes came out, and the week a cobra escaped from the Bronx Zoo and started tweeting, picking up over 188,000 followers in no time at all: “Indiana Jones,  why did it have to be Indiana Jones?” it cried at one point. No doubt the social media consultants, for whom follower counts and re-tweets define significance, will be busy calculating its influence.

My blog, it seems, has been looking after itself – one post written just before I left, Lawyers replaced by computers for ediscovery search – a retrospective had clocked up 1,463 views in a few days, a target I will find it hard to beat, especially when in competition with a cobra. More posts (and everything else), follow shortly, but here are some photographs to show I am still around.

The Apple Store on 5th Avenue New York

The Apple Store on 5th Avenue

Downtown view from Morgan Lewis

The view Downtown from Morgan Lewis on 40th Street

Early morning at the south end of Central Park

Early morning at the south end of Central Park


A fire escape

A fire escape

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LDM Global Breakfast Briefing on 7 April – The UK Bribery Act: an International Perspective

Posted on March 23, 2011 by Chris Dale

LDM Global is hosting a complimentary breakfast briefing on the UK Bribery Act on Thursday 7 April at 8:30am. The venue is the IoD Hub at 35 New Broad Street, London EC2M 1NH.

The theme is the international perspective. The speakers are Rose Parlane, who is a senior associate at McGuireWoods and a member of its Anti-Corruption Group, Don McFarlane, Head of Global Operations and General Counsel at LDM Global, and me.

Whilst the final form of the act and its guidance notes remains the subject of some speculation, its international reach, and the implications for those who do business internationally, will survive the fine-tuning which rumour brings our way. The potential requirement for international data collections, in which LDM Global has considerable experience, is one of the foreseeable consequences of the act.

You can find out more and sign up for this session on the registration page on LDM Global’s web site.

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ZyLAB half-day seminar on 6 April: the UK Bribery Act – controlling the impact on your organisation

Posted on March 23, 2011 by Chris Dale

E-discovery and information management software provider ZyLAB is hosting a half-day seminar on the UK Bribery Act in Middle Temple Hall on 6 April starting at 9:30am.

ZyLAB’s applications stretch from the long-term information management requirements of companies through to the identification, collection, analysis and production of documents and data required for litigation and for regulatory and other investigations. The UK Bribery Act will sharpen the need for organisations to be on top of all of the information which may be relevant for these purposes.

Speakers include Bill Waite, CEO of the Risk Advisory Group, John Ryan, Records Manager at BNP Paribas, and me. The morning session will be followed by lunch and, for those who are interested, a tour of the Middle Temple.

Contact Melanie Strangwick at ZyLAB via this page on the ZyLAB’s website.

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