eDisclosure Information Project

My apologies if my title has brought you here under a misapprehension as to its subject-matter. It has been that kind of day. “Virgin” is Virgin Media, supplier of telecommunications services which generally work, albeit not at the speeds advertised. “Screws up” is what my head usually says when things do not go to plan, but which my typing fingers translate as “ruins” or “fouls up”; nothing short of the original expression will do for today. A “webinar” is a live or recorded conversation between two or more people, intended for broadcast to a potentially wide audience on some improving subject. “Nearly” implies that I made it by the skin of my teeth.

I was due to moderate a webinar this afternoon with a couple of people from US law firms. Although the theory was that I just had to open and close it, do the introductions and say the formal bits, in practice one prepares for these things, so that an hour of broadcast is backed by masses of emails, notes and arrangements to allow a useful contribution to the discussion. I am quite conscientious about setting all this up, using anything up to four screens to give me all my references to hand plus paper as a backup, testing the lines, turning off anything noisy and so on – everything necessary to provide a calm and efficient environment.

About 30 minutes short of start-time, the broadband line-speed starts to drop. That’s not ideal, but OK, just use the internet for the pictures and do the talking over the phone. Then the whole lot falls silent – no internet, no land-lines, not even 3G iPad data over Vodafone, which leads me to conclude that Vodafone data is carried by Virgin for part of its route. I’m left with BlackBerry email and phone.

My wife phones Virgin; she knows that, however calm I am about most things, I generally end up screaming with incoherent rage at call centres, especially Virgin’s – at the time-wasting recording of some badly-spoken fool telling you all sorts of crap you don’t need to know, and the endless button-pushing and loops through multiple options before you end up with someone whose skill-set does not include either the comprehension or the speaking of anything resembling English. Continue reading →

I am very pleased to welcome CY4OR as a sponsor of the e-Disclosure Information Project. I wrote about them a few days ago, but that was about their marketing, which I rated highly. What about their work?

CY4OR was founded in 2002 with specialist expertise in computer forensics and data collection for crime, fraud and civil disputes. There is more to this than just examining a computer to prove guilt – computers are only one of many devices which may be may require examination, and a forensic expert may equally be engaged to prove innocence, something which is easily overlooked. Mobile phones and other portable devices are an ever-growing source of information as these devices become more and more sophisticated and more widely used. Call history attracts attention as an obvious piece of evidence (all those suspicious spouses get the subject into the papers), but that is just the start – names in the address book, and the record of transfers via iTunes or WiFi connection history, are just some of the details which can be pulled from a mobile device. Each new platform and development brings new potential for evidence tracking.

The ability to copy data from a range of devices shades naturally into electronic disclosure for the purposes of civil litigation, for internal investigations and for regulatory purposes as well as for matters involving crime. That in turn leads into the next stages in electronic disclosure, such as processing data to remove duplicates and unwanted files (at the simplest level) before the data can be analysed for relevance. Continue reading →

There are plenty of helpful articles about LegalTech 2011, just closed in New York, and about what was on view there. This is a more personal account, aimed at encouraging more UK lawyers to go next year for a concentrated immersion in the subject of electronic disclosure / discovery – the problems, the solutions, the practice and the technology. You can also have a good time.

I was a bit taken aback when the young lady said “You Englishmen always look as if you have stepped out of bed looking like that”. She had just been admiring my suit notwithstanding (or perhaps because of) its style, which belongs 25 years ago when it was made for me. My very conventional black-and-white spotted tie had aroused similarly positive comments. Now she was saying that I looked as if I had slept in my clothes. What she meant, it transpired, was that Englishmen look as if a suit was natural attire, not just something formal put on for show. I am not sure either that that is generally true of the English or any less true of anyone else, but I know how to take a compliment gracefully.

You could not miss the UK contingent at LegalTech whatever they were wearing. It sounds odd now, but the reason I first went to LegalTech five years ago was the calculation that I could see more UK providers and litigation support people in less time and for less expense than by any number of trips to London. I mention this as part of my annual suggestion to UK lawyers that three or four days in New York in February would give them a better knowledge of electronic disclosure / discovery than they will get in a year at home. You still hear in London the rather silly objection that “electronic discovery is something Americans do and look what a mess they make of it”. I am no enthusiast for the American way of litigation, but neither are many Americans. We can borrow the best of their thinking, and their technology, but only if we understand it. There is more to FRCP e-discovery than sanctions and excess, just as an Englishman is more than a double-breasted suit and a spotted tie (there is the accent as well, as we will see below).

This does not purport to be a comprehensive survey of LegalTech and of the technology displays and sessions which comprise the formal part of the show. These summaries by Sean Doherty, Nick Patience and Katey Wood will suffice for that and The Posse List’s Electronic Discovery Reading Room has Applied Discovery’s index of post-LegalTech articles. Although most providers with a UK presence turn up somewhere below, I have no intention of reciting everything I saw nor name-checking everyone I met, and nothing is to be inferred from inclusion in or exclusion from my quick summary. I aim merely to indicate what you can get through in three days if, as a corporate counsel or external lawyer, you come to LegalTech. Continue reading →

Can you get Henry VIII, necrophilia, the Human Rights Act, Phil Woolas, quangos, rubbish bins, the nuances of the English language, New Labour statism and health & safety into one serious article about the role of the judiciary vis-à-vis the executive? I’ll give it a try.

The relationship between parliament and the judiciary reached its nadir under the recently departed Labour government. The battlegrounds were the Human Rights Act, the so-called “Henry VIII” powers with which Labour sought to by-pass parliament, and the inverse relationship between the quantity and the quality of the mass of legislation which poured out of Westminster. Matters do not seem much improved under the coalition. The Lord Chief Justice, Lord Judge, has been making his views known.

The Human Rights Act

To some, the Human Rights Act is one of the signs that Britain is going to the dogs, whilst others see it as a fundamental assertion of the rights of ordinary people against the state. Most of us, politicians included, would like to pick and choose, depending on our own views of the individual outcomes of cases brought under it. The same applies to other circumstances where our liberties are at stake, where the authorities increasingly see our rights as a barrier to their powers rather than something which they were elected or appointed to protect, and we expect simultaneously to be guarded and left alone. To a judge, it is a more sober matter of applying the law to the facts.

The incoming Labour government in 1997 was quick to introduce the Human Rights Act, which passed into law in 1998. Almost immediately, however, it found that the Act stood in the way of things it wanted to do. Tony Blair, not a man to let little things like democracy and the rule of law stand in his way, was openly irritated by judicial intervention, as was his first Home Secretary, Jack Straw, (who introduced the Act). Straw’s successors, especially David Blunkett (a man whose undoubted political cunning seemed unqualified by common sense or self-awareness) seemed to see the judges as the enemy, whilst Jacqui Smith (for whom “home” and “secretary” somehow seemed just the right words) behaved as if the entire population was the enemy, and certainly made us feel it. Considerable political capital was expended in the government’s fight for 42 days’ detention of possible terrorists, which trampled on much more ancient rights. The government thought it almost treasonable that judges “used” the Human Rights Act to thwart the executive’s stance on possible terrorists – I put “used” in quotation marks to emphasise the gulf between judges applying the law as they found it and the government’s perception that it was judicial spite which turned their own creation against them.

The conflict continues to bubble along in matters both specific and general. A specific example is the recent decision by an Immigration Tribunal to allow an asylum seeker to remain in Britain despite an unlicensed driving career which included mowing down and killing a child. Prime Minister David Cameron was outraged at the tribunal’s conclusion that the driver’s subsequent marriage and fatherhood meant that his human right to family life trumped the ordinary man’s view as to what was right. Outrage, however, is no substitute for a cool appraisal of the law – see this post on the Human Rights Blog for an analysis and for comments both ways which show why Joe Public (that’s you and me – and, in this context, the government of the day) do not get to convert our instinctive judgments into action. Continue reading →

It is very beautiful here in Oxford this morning, but I am glad I am not going anywhere today.

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There is no bread in the shop. The car has been buried for two days and I am not sure I want to take it on the roads anyway.

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In my shy, retiring and very English way, I have been busy disclaiming credit for things this month. Those of you who were at the Judicial Roundtable at Georgetown, or who read my account of it, will know that I felt compelled to take the microphone when the US judges were praising various aspects of the UK e-disclosure model. I said that we were happy to hear praise for the rules and the spirit of proportionality which they promote, but that I wanted to make it clear that the practice does not yet live up to the promise which the rules imply.

In the same spirit, I must stress that I do not deserve the credit given to me for Jonathan Maas’ spirited e-disclosure version of the Twelve Days of Christmas which appears on Charles Christian’s Orange Rag today  The idea, and all bar two of the words, were Jonathan’s. My only input was a minor point of scansion, and the suggestion that Jonathan was “aided and abetted” by me dilutes the credit which properly belongs with him.

There’s more to it than not wanting to share the limelight. I thought I had better look up the expression “aided and abetted”. One web definition says this:

Notice, however, that before any person can be held criminally responsible for the conduct of others it is necessary that the person wilfully associate himself in some way with the crime, and wilfully participate in it. Mere presence at the scene of a crime and even knowledge that a crime is being committed are not sufficient to establish that a person either directed or aided and abetted the crime.

It’s a risk management matter, really. On the one hand I might share in the royalties and be able to retire. On the other hand, if Paul Chambers can get a criminal conviction and £3,000 in fines and costs for a 140 character tweet, God knows what the CPS will make of a 12 verse poem. Pro rata to word-length, my share of the royalties would be 1/1717th of the gross receipts and the financial penalty would be £52,157.15. My risk assessment suggests that I forgo the chance of royalties and deny that I aided and abetted.

Thank you, Jonathan, anyway, for brightening up a dull Friday.

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The InnoXcell eDiscovery Exchange Platform in Singapore seems months ago, though I have in fact been back for only a fortnight. I wrote briefly about it then (A quick ediscovery trip to Singapore)  and promised a round-up of the sessions. I will keep it brief – the primary purpose is to show the commonality between jurisdictions, on which I have said a fair amount recently anyway.

Why do I go to these far-flung places? It is certainly not for the tourism – I was in transit to and from Singapore for as long as I was there, and did not get more than one block from the hotel. It was not just to meet up with old friends – most of the people I saw there are people I have seen elsewhere recently and will see again at LegalTech in February. I have heard quite enough of my own voice recently and do not need to cross the world to hear more. I do not really need any more air miles. Have you ever tried to spend BA’s air miles? The system is cunningly weighted to ensure that only those with infinite leisure and complete indifference as to their destination can ever make use of them. Whilst I appreciate the access to lounges, the ability to jump queues and the occasional upgrade, these things are only of value if you travel a lot anyway, and that gets us no closer to providing a motivation for going.

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There is no point in my summarising this when Monica Bay has already done so and provided a link to it.

The sentence Asked if EDD for civil actions needs to be curtailed in the U.S., 70% agreed, and 50% said the U.K. “also needs some tailoring is presumably not a reflection on the dress sense of UK lawyers but on the way the rules are used or not used to provide disclosure which fits the case and its issues. Much e-disclosure (to continue the analogy) is like hoping for a well-cut suit and getting instead a whole roll of cloth.

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