Monthly Archives: August 2012

Two peas in a pod

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It used to be said that the UK and America were two peoples separated by a common language. Apart from the obvious “Tomahto”, “Tomaydo” which is really only a difference in pronunciation, we are all familiar with the American “line” instead of “queue” or the “trunk” of the car instead of the British “boot.” Numerous other examples abound!

This relatively inconsequential observation came to mind as I read the article by Kate Paslin entitled Show Me the Money – Proposed Rule Changes Take on the Spiralling Costs of Discovery. [eDiscovery Insight, 21st August, 2012]

Kate compares the recent (soon to be in force) changes in the rules in England and Wales with the current approach in the US to issues relating to discovery/disclosure. Her premise is that the costs management changes in this jurisdiction may define the trends in this field for the whole of 2013.

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..but it pours

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In a post called It never rains… [Smart e-Discovery, 15th March, 2012], I reported on a case where Mr Justice Richards was critical of the attitude one party adopted towards e-disclosure. Describing their approach to disclosure he said: “There is a sort of lackadaisical view in relation to this category.”

The case is a property dispute between the Barclay brothers and Irish property tycoon Paddy McKillen and the judge has now found in favour of the defendant Barclays.

It may well go to appeal but in the meantime we mere observers can enjoy the comments by the defendants’ lawyers, which you can read in a recent article by Sam Chadderton  [Disclosure Day, The Lawyer, 15th August 2012].

If the judge did not mince his words, the defendants’ lawyers had a field day. Commenting on the case, the partner in charge, Richard East of Quinn Emanuel said:

“The way in which this case unfolded, and the result achieved, demonstrates that litigation in London has moved on from where it was five or 10 years ago. Specialised and focused firms like Quinn Emanuel have the expertise and fire-power to run these cases at the highest level, and to outgun our opponents in the process.”

A dig at their opponents? Ouch! But the lesson is clear. The courts will not tolerate a lackadaisical approach to disclosure, hard copy or electronic and these days and in those sorts of cases it almost certainly has to be electronic.

Case note: McKillen v Barclay Bros.

The rise and rise of predictive coding

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On the basis that when America sneezes, the rest of the world catches a cold, it is as well to take note of happenings across the water.

Sharon Nelson’s Ride the Lightning service keeps me abreast of developments in the US.  Sharon’s latest piece entitled ABA Survey Shows Rapid Rise in Predictive Coding [Ride the Lightning, 21st August, 2012] highlights the publication of the most recent volume of the ABA’s Legal Technology Survey Report: 2012 Litigation and Courtroom Technology (Volume III).

The good news, if you are a vendor, is that there has been a 53% rise in the number of attorneys using predictive coding. The bad news is that most people cannot agree what constitutes predictive coding and what does not.

What is clear is that the use of predictive coding is on the rise with 44% of large firm attorneys (define that how you will) admitting to its use. Sharon says that keyword searching is still alive and kicking and she believes this state of affairs will continue until the cost of predictive coding falls.

Fall it surely will and there is some evidence of that happening already, but frankly, to be able to identify within a few days the likely relevant documents by reviewing only a fraction of the documents available, which may run to millions, while at the same time reading into the case, must be good value (particularly so, if the lawyer can then charge her client for her time in conducting the initial review).

Not suitable for every case, I will readily admit, but where it is suitable, what is there not to like?!

The way of the world

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At this time of year when many people are on holiday and the news appears to be sluggish, articles start appearing which seek to take a longer view or which report results of research which has previously taken place. A recent example is the review in The Lawyer of July 30th into what they call The Great Banking Swindle (their words, not mine!)

Take a pinch of LIBOR fixing and add a dose of interest rate swaps and season with the odd prosecution and regulatory investigation and you have a cauldron from which many of the most well known law firms and members of the Bar may sup. According to speculation by commentators, “every single noteworthy firm” will find a role, given the “depth and breadth of the fall out”.

I have already posted about the first case of this kind which happily is being pursued in the Birmingham Mercantile Court under the auspices of HH Judge Simon Brown QC, see  Friends, Romans, countrymen..

Doubtless there will be others before long.

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A ha’porth of tar

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How to get Court Approval for Predictive Coding is the title of an article in Law Technology News [14th August, 2012] by Peter Buckley and Scott Vernick of Fox Rothschild in Philadelphia. Commendably short and to the point, the article provides a neat summary of the current legal state of play in relation to predictive coding and offers several practical tips for lawyers who engage in this technology.

It is worth distilling a few general points from the article, which should be read in full—it will take but a few minutes—and reading the rest of this post will take rather less!

  • E-disclosure needs to be considered in almost every case to assess whether or not its use is appropriate.
  • When you are before the court you need to be able to show how you achieved the results you have and /or why you chose a particular course of action over another. “Keep it simple, show your workings” must be the mantra. Continue reading →

Flavour of the month

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Suddenly everyone is talking about forensics.

It cannot be just because the Olympics are over, or that The Lawyer has just published its latest table listing the top 100 UK law firms, revealing that as often happens with statistics, different results can be achieved using the same data but in different ways.

It seems that DLA Piper is the main beneficiary of this reworking, leapfrogging over the usual magic circle contenders to take the crown as the “top” firm based in the UK with a staggering 8565 staff worldwide. Hogan Lovells has also benefited, moving into 6th position and CMS (Cameron McKenna) has arrived at 8th.

People may draw various conclusions from these tables but what they underline is the need to take care when examining data so that you draw the “right” conclusions and not the false ones.

Which brings me back to forensics, now more than ever before, a crucial part of the litigators’ armoury.

Hot on the heels of our post about the appointment of Stuart Clarke as Head of Digital Forensics & Technical Services [Forensics in the Cloud, 9th August, 2012] comes an article in Law Technology News on iForensics by Richard Lutkus, managing associate at Seyfarth Shaw:  Apple’s iOS presents complicated challenges for e-discovery [Law Technology News, August 2012]

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A devilish problem

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Dominic Lawson’s Sunday Times article dated 5th August 2012, entitled “To sell your soul, Faust, press Return”, suggested that our relationship with the computer has “become the modern equivalent of the Faustian pact” on the basis that computers and the internet have provided humans with such a wealth of information that there is an inevitable feeling that we will have to pay a terrible price for all this knowledge and power.

Christopher Marlowe’s play, Doctor Faustus, about the man who sells his soul to the devil in return for 24 years of knowledge and power features a devilish character called Mephistopheles. He serves Lucifer and after Faustus enters into the pact with the Devil, it is Mephistopheles who provides Faustus with much knowledge and power but also comes to collect his soul when the term of the “contract” with the Devil expires. Dr Faustus was controversial when it first appeared in the late 16th century. The play led to heated theological debate between supporters of the Calvinist view of theology and the anti-Calvinists.

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Forensics in the cloud

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Millnet has recently appointed Stuart Clarke as Head of Digital Forensics & Technical Services.  Before joining Millnet in June, Stuart was Principal Consultant at PA Consulting Group, an appointment which arose from PA’s takeover of information security consultancy, 7Safe, where he was Senior Consultant and Forensic Services Manager.

It is fair to say that Stuart is steeped in the business of digital forensics – he holds a first class honours degree in Computer Forensics from Northumbria University, where amongst other things he developed special expertise in detecting network attacks.

Subsequently, Stuart has been called as an expert witness and has had papers on identity theft published in Computer Weekly and City Security. At 7Safe, Stuart was involved in the development and delivery of a Masters Degree course in digital forensics and his interest in education and training in his subject is ongoing.

Clearly, this appointment signals Millnet’s intention to beef up its presence at the ‘front end’ of the electronic discovery/disclosure process, so we asked Stuart to give us his perspective on what lies ahead.

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Friends, Romans, countrymen..

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I have been away.

My timing is not always good. It was not until I paid my third visit to Rome that the authorities removed the scaffolding from the front of St Peter’s allowing an uninterrupted view of the magnificent façade, and I never did see inside the cathedral in the Plaza Mayor in Cusco where I was denied access because of an earlier earthquake which was said to have rendered the building unsafe.

Probably my worst piece of timing was to arrive in Tiananmen Square on my one visit to mainland China with the firm intention of visiting the mausoleum which houses the remains of Chairman Mao only to be turned away at the door with the news that the building was closed as his ear had fallen off!

On this occasion, my timing has been better. Not only has Team GB won more gold medals at the London Olympics than I thought possible, but I managed to be back home to see most of them including the incomparable Jessica Ennis, the enduring Mo Farah and the leaping Greg Rutherford all within the space of a few minutes of one another.

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