Cooperation does not mean collaboration

I enjoyed my life as a commercial litigation lawyer.

Early in my career, I learned that the most important person in my working life was not the client, important as the client clearly was, nor the partner for whom I worked, although it was certainly important to have a good working relationship with him (in my experience it was always “him” in those days). No, the most important person in the office was the managing clerk.

I suspect I am right in saying that there is no such animal today. Today, with its all graduate entry into the profession and the obsession with paper qualifications often to the detriment of any real understanding of how to make things happen, law firms are full of paralegals, contract lawyers, trainees (not articled clerks) and other apparently brilliantly qualified individuals.

In the dim and distant past, there was a small and highly skilled group of people who really knew the nuts and bolts of the litigation process. They were not partners, nor solicitors, indeed in many cases, they had no formal qualifications at all but they were a mine of detailed information about the rules and how to interpret them. Most importantly in my case was their friendship with all and sundry “down at the Courts” as a result of which they appeared capable of arranging for summonses I had failed to have issued, to be issued without fuss and within the relevant time limits even if the resulting document was covered in rather more red stamps than I had hoped!

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Globalisation

The Great Mosque in Cordoba in Southern Spain is one of the wonders of the modern world.

It is not that new, of course, dating from 756 AD when the Caliph of Damascus set up his court in Cordoba and constructed the mosque on the site of an earlier Roman Temple of Janus which had itself been converted into a church by, of all people, the Visigoths. In 1236 the city was captured by Ferdinand 111 as part of the Reconquista (culminating in the expulsion of the Moors from mainland Spain in 1492). Ferdinand was responsible for the cathedral we see today, which is effectively a Christian cathedral housing an Islamic mosque on the site of a Roman temple converted into a Visigoth church!

It is often forgotten that there have been periods of our history when different religions and cultures have co-existed. One such place was Cordoba where there was a significant toleration of different cultures giving rise to an explosion of artistic and intellectual predominance. Other examples include the influence of Ancient Greece which extended as far East as India and west to Spain and encompassed much of northern Africa. No one pretends that all this globalisation was achieved smoothly or that the results were uniformly benevolent but nonetheless globalisation has been with us a long time and we are seeing further extensions in our own time.

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It’s information governance, stupid

With a backward glance to the phrase widely used by President Clinton’s campaign team about the importance of the economy to the US electorate in 1992, in contrast to the campaign of the incumbent President Bush (the first) which relied on achievements in other areas such as foreign policy, I was interested to read the thoughts of Senior Master Whitaker on the subject of Information Governance published in the New Law Journal recently:

A brighter future:  Master Whitaker suggests a framework for improving the practice & reducing the costs of e-discovery, 30 March 2012.

Steven Whitaker is well known as an advocate of the proper use of technology in relation to the ever increasing volume of ESI which lawyers have to confront in modern litigation and his article encapsulates the approach which increasingly the courts will impose on litigants in common law jurisdictions.

The views expressed are not new. Indeed, the Master addressed the plenary session of the Singapore Conference on Electronic Disclosure in August 2011 in these terms. The views are, of course, even older than that as his references to cases such as Earles v Barclays Bank Plc [2009] EWHC 2500, Goodale v Ministry of Justice [2009] EWHC B41 (QB), Nichia Corp v Argos Ltd [2007] EWCA Civ 741 at [47], Jacobs LJ, and Digicel (St Lucia) Limited v Cable & Wireless Plc [2008] EWHC 2522 (Ch) make clear.

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Considered, deferred, denied

I remember what happened to each of the six wives of King Henry V111 by way of the doggerel:

“Divorced, beheaded, died,

Divorced, beheaded, survived.”

This is not the time or the place to go into details! It is sufficient to say that after many years on the throne, married to Catherine of Aragon, the King gradually became obsessed with the need to father a male heir, which, together with the connivance of Thomas Cromwell, set in train the momentous events involving the break with Rome and a new State religion, the effects of which we are still living with today.

Can we say the same about predictive coding?

After some considerable time during which disclosure was mainly handled by teams of lawyers handling ever increasing volumes of paper, we moved on to a general acceptance that some form of technology would have to be used if the exercise was not to take far too long and become ruinously expensive. The debate now ranges over the various techniques which can be employed and one of those, as readers of this blog will know all too well, is computer assisted review or predictive coding. Continue reading

The why & how of predictive coding

Followers of this blog can hardly have failed to notice that Predictive Coding is the hot topic of the moment.

In the first of a broadcast mini-series of interviews by Chris Dale of the e-Disclosure Information Project, James Moeskops, MD of Millnet’s Legal Services division talks about the present state of play. In short, where is the technique justified, what are the processes employed and where is all this leading?

the Millnet Channel on iPadioThe broadcast is 12 minutes long - you can listen to it on the Millnet iPadio channel - 
ipadio.com/channels/Millnet

Alternatively, you can read a PDF transcript of the interview here

Sucker punch

Jeffrey Stern, Esq. of New Jersey law firm Stern Law LLC reports on a recent decision of a Pennsylvania court (Gallagher v. Urbanovich, No. 2010 – 33418, C.P. Mont. Co. Feb. 27, 2012) where the judge allowed a man claiming he was sucker-punched during a work-sponsored soccer game to investigate the Facebook page of his alleged attacker to find information to bolster his civil lawsuit. [Be Careful What You Post…the Court May Be Looking, Stern Law, 15th April, 2012]

The judge ordered the alleged attacker to not delete or otherwise erase any information on his Facebook account.

This sort of order is not new and Gallagher is only the latest in a line of cases which have been reported in my previous musings going as far back as McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), through Zimmerman v. Weise Markets, Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. County Ct. May 19, 2011) and on to Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011).

Lawyers in this jurisdiction should by now be well aware that what you post on social media sites is disclosable.

To avoid the sucker punch, Stern suggests four rules of thumb:

  • Do not accept “friend” invitations from people you do not know.
  • Adjust the privacy settings on your profiles to private.
  • Do not post anything to your profiles discussing your lawsuit and/or related injuries.
  • Reconsider posting pictures, especially those that will be used to dispute your injuries or tarnish your image.

Simple really! Or as simple as not trying to destroy evidence by deleting emails, but of course, that never happens does it?

 

sucker punch
n
1.a sudden surprise punch, esp from behind
2.a sudden unexpected defeat or setback

definition from thefreedictionary.com

Deepwater rafting

This short post contains something new and something not quite so new!

In the “not quite so new” corner, The Times reports (April 25th 2012) that a BP engineer has been charged with allegedly trying to destroy evidence about the true scale of the Deepwater Horizon oil spill.

The interestingly named Kurt Mix is alleged to have deleted at least 300 messages including texts exchanged with a supervisor on the subject of the unsuccessful attempt by BP to cap the Macondo well using a technique known as “top kill.”

The US Department of Justice says that Kurt Mix’s texts show that BP knew that the well was leaking more oil into the Gulf of Mexico than it admitted and the engineer now faces two charges of obstruction of justice.

One text is said to include the message: “Too much flow rate-over 15000.”

Not yet quite on the scale of the Enron debacle but significant in any event. The wider message is not new: don’t assume that by pressing the delete button you can get rid of the material. I suppose the other message lawyers may want to give to their clients is that they should discourage employees from putting sensitive discussions into writing.

While that may not be a new message either, there is a very new development in the Virginia State Court. In the case of Global Aerospace Inc v Landow Aviation LP et al an order approving the use of predictive coding was entered on April 23rd 2012.

The details of the case are apparently complex but Ralph Losey’s report in his e-Discovery Team® blog heralds this as the “second ever order approving predictive coding.” [Second Ever Order Entered Approving Predictive Coding, 24th April, 2012 ]

Judge James H Chamblin’s order may be found by following the link above.

Academia meets the real world

Talking to Patrick Burke of Guidance Software recently I learned that he is an adjunct professor at the Benjamin N. Cardozo School of Law in New York. Apart from being Senior Director and Assistant General Counsel at Guidance, Patrick gives of his time to teach law students about the delights of e-discovery.

It must be a success, to judge from the piece published in Law Technology News earlier this month written by one of his students Lindsay Korotkin:  “Academia Meets the Real World.”  [PDF version here]

It seems pretty obvious that law students need to learn about processes which will assist them in dealing with their future clients and pieces of litigation they encounter. Patrick has set up a LinkedIn group Cardozo E-Discovery and encourages lawyers and potential employers to join in. I have applied!

However, while it seems to happen “over there” it does not appear to happen “over here.” I know of no General Counsel/Director of a software company engaged in teaching British students about the technology available to make litigation more efficient and less expensive.

I hope I am wrong!

E-cigarettes can be bad for you..

I was drawn to the case of the unfortunate Tom Holloway (no relation I assure you) of Niceville, Florida by the headline in JusticeNewsFlash.com “E-Cigarette Blows Up in Florida Man’s Mouth…” Poor Tom was smoking an electronic cigarette at home when it exploded in his mouth, knocking out his teeth and part of his tongue and causing a fire in the room.

It must have been extremely painful and one can only sympathise with him. I am sure he was not comforted in any way by the laconic comment at the end of the report that the Food and Drug Administration does not regulate e-cigarettes.

Whatever debate may be emerging on the benefits and dangers of e-smoking, the past month has  proved to be a most fertile time for e-disclosure/e-discovery watchers. Assiduous readers of this and other blogs and commentaries have enjoyed a veritable feast of cases and comments on the subject.

Mr Justice Akenhead has been active in this arena recently (see [2012] EWHC 668 (TCC) (1) Phaestos Limited (2) Mindimaxnox LLP v Peter Ho (2012) QBD (TCC) (Akenhead J) 16/03/2012) and now he has done it again! By this I mean that he has reached a decision which is important in the overall context of the development of the law surrounding the obligations to give disclosure, rather than that he has “put his foot in it.”

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The wood for the trees

If you become so caught up in the smallest detail that you fail to understand the bigger picture, you may say that you cannot see the wood for the trees. I am NOT about to break my promise to defer further detailed comment on the predictive coding saga rumbling around the US at present. My purpose was to ensure that I did not engender more speculative comment on this site to add to the volumes which exist elsewhere!  However, it was not my purpose to desist from all comment, provided that the comments could be said to add to the debate.

I feel strongly that we need to get away from all the hype about the subject as well as the extraordinary personal attacks on Judge Peck’s integrity contained in the Da Silva plaintiffs’ “paper” submitted to Judge Carter and concentrate on making sense of the various rulings and opinions for our joint edification. If you want to read about what I mean and do not want to go to the source, have a look at Craig Ball’s blog on the subject to get a feel of some of the vitriol – Putting the Duh in Da Silva Moor  [Ball in Your Court, 26th March, 2012].

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