The right to be forgotten

Without forgetting it is quite impossible to live at all – Friedrich Nietzsche

Like the rumble of thunder which precedes the storm or the escape of sulphurous gas which heralds a volcanic eruption, it is clear that the EU is up to something.

That something promises to be momentous. Forget the recession/depression, forget the riots on the streets of Athens, forget (if you can) the reelection campaign of President Sarkozy (who has not yet even announced that he is going to stand for another term as President of our favourite neighbour)!

All this is unimportant. The EU is turning its attention to data privacy.

Now I am not for one moment suggesting that what happens to personal data is not rightly of concern, particularly to the person whose data it is. The EU has recognised its importance and on January 25th (Burns Night for those non Scots who need reminding that our northern neighbours will be getting smashed on Wednesday), the EU intends to publish proposals for new data protection rules.

I have not seen the draft proposals but believe that we may see included something along these lines:

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You tweet (or blog, post and poke) if you want to, but take care!

“Are you on LinkedIn?” asked my companion. I confessed that I was. “Facebook?” Well, not exactly, I replied. “Why not?” my interrogator continued. By this stage I was beginning to wish I had not started the conversation, but I had been keen to establish whether this particular litigation lawyer was into social media because our conversation had been about ways in which lawyers market themselves.

When I was a practising lawyer, I fell into the camp of “being keen on marketing” but I was always a little disappointed with the results of my efforts. Fine, if you really had a triumph to trumpet about and an audience which was interested but otherwise it always seemed to me to be rather false. Perhaps I suffered from (false) modesty, a charge which my lawyer friend threw at me recently and this was how the conversation about social media started.

I have already joined the crowd who make predictions about 2012 and I am certainly not going to go down that route again, but allow me to say that this whole social media lark is becoming all-pervasive. It is virtually impossible to pick up a newspaper these days without seeing a report about some tweet, blog post or story on MySpace or Facebook. And the companies behind the successful sites are worth mega millions as can be seen by the recent LinkedIn float and the ongoing saga about the valuation of Facebook.

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In the race to modernity, technology rules

If you thought that this blog was in danger of a takeover by judicial pronouncements from the USA, here is a short reminder of some recent stories from the UK.

In the race to modernity, the Supreme Court seems likely to allow advocates to dispense with court clothes. Whether this means that lawyers can appear in a collarless shirt and no tie or in Lycra and trainers, we will have to wait and see, but I predict a few arguments before the Bar (and it still is largely the Bar) are allowed to turn up dressed at will. The last case I listened to in the Supreme Court concerned the liberty of the subject and a proposed extradition to the United States to stand trial. I am not sure the applicant would have felt he had had his full deserts if his counsel had been in cords and trainers.

The Attorney-General has been given leave to bring contempt proceedings against the Daily Mail and the Daily Mirror over their coverage of the Milly Dowler trial and the conviction of Levi Bellfield. Coming hot on the heels of the harrowing testimony from Milly’s parents and others at the Leveson Inquiry, the decision to take action against the two newspapers ensures that we will not have heard the last of this subject for some time to come. In the circumstances, I think this is probably no bad thing as matters like this tend to be forgotten too easily. I wonder how they will collect all the electronic material which undoubtedly exists. Presumably, the lawyers concerned have already formulated their strategy. It is never too early to do so as decisions made at this preliminary stage can set the tone for the conduct of the case in the future.

Lord Justice Jackson is also back in the news. His reforms to civil justice are currently making their way through Parliament in the form of the Legal Aid, Sentencing and Punishment of Offenders Bill. This seems to be a strange title for the vehicle to make changes to the CPR but its contents, should they become law next year, may be viewed in due course as truly modern and even revolutionary.

The Lawyer of November 23rd 2011 carried an article entitled “Get used to it” setting out the proposals made by Lord Justice Jackson which are at the heart of these reforms. It seems to me that in order to deliver the regime to assist litigants to save money and to ensure judges have the tools properly to manage the cases for which they are responsible, technology will play a large part.

In that sense technology will truly rule, in the rush to modernity.

Pandora’s box

Lovers of Greek mythology will be familiar with the story of Pandora, whose curiosity ensured that she opened the box given to her by Zeus with instructions that she should on no account open it. When she did, evil escaped around the world and although she tried her best to get the lid back on, everything inside escaped except Hope.

Rest assured that references to Pandora’s box and Ancient Greece are not intended as a prelude to commentary on the dire state of the Greek and other Eurozone countries (and others like our own which are directly affected by the mess the over-confident Europhiles have made of the economy of the once prosperous Western world).

No, my purpose is to praise the ever colourful language of our American cousins sitting in their courtrooms around the USA, who, while dealing with a variety of cases which might just as well be heard in any court in this country, ever delight in a word or turn of phrase which while slightly out of the ordinary, serve when used by US Judges to underline the truths we should come to accept as the norm here in this jurisdiction. Continue reading

Postscript from Munich

If bits and bobs can tickle my fancy in some strange metaphorical way I would like to share with you four observations which struck me from the panel sessions at the recent IQPC event in Munich.

  • Firstly, Ronni Solomon of King & Spalding, Atlanta referred to a case which resulted in high level executives having to give discovery of their private webmail addresses.In the memorably named Helmert v Butterball in the US District Court Eastern District of Arkansas Western Division (May 2010) J Leon Holmes US District Judge said:“Active, online data is generally considered accessible. Zubulake, 217 F.R.D. at 318-20. Thus, in addition to conducting a search of active and archived emails in Butterball accounts, the defendant should also search hard drives, laptops, and the personal email accounts of Walter Pelletier and Keith Shoemaker*fn11 for the search terms described above. To the extent that it has not yet done so, Butterball also should disclose all of the sources of ESI within its possession and control.”. Continue reading

Here comes the judge

If you thought that it is only English judges who are telling our futures with their comments on the future of litigation and processes then you need to be aware that the pace of change in other jurisdictions continues apace.

In a recent article in Law Technology News, Mark Michels, Silicon Valley consultant and formerly litigation manager and discovery counsel at Cisco Systems, informs us that a number of judges have recently contributed to the debate about predictive coding, sometimes referred to as ‘technology assisted document review’. [Predictive Coding: Reading the Judicial Tea Leaves, Law Technology News, 17th October 2011]

US District Court Magistrate Judge Andrew Peck, Magistrate Judge John Facciola of the US District Court for the District of Columbia and Magistrate Judge Paul Grimm of the District of Maryland are three of the strongest proponents of e-discovery solutions currently sitting in the US courts.

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Is everything in the garden rosy?

Not if your garden is in Greece! The latest news suggests that horticulture in that part of the Mediterranean must be very tricky. Drought conditions prevail and the plants are looking a trifle sickly.

It is not much better further along the Mediterranean either with Berlusconi withering on the vine, Zapatero running for cover (elections in Spain have been announced early for 20th November) and Portugal assumed to be every bit as badly off as the others.

And that is before we come to our own rather parched patch in the UK to say nothing of the swathes of desert in Ireland and the increasingly bare ground in France, Belgium and the USA.

One of the few verdant areas in the financial garden is Germany but the indigenous gardeners are not keen on lending out their watering cans and still less their extra produce to sustain less fortunate horticulturalists. Continue reading

Earwigging

Ask any group of people if they know the meanings of the words “synonym” and “antonym” and I guarantee a majority will know the definition of both. Ask the same group of people how they would define “contranym” and I am fairly certain you will be met with blank stares.

Rather like English law which is almost impossibly flexible and which accounts for its popularity around the world, the English language is full of words to describe different nuances of the same thing. We may not be able to match the Inuits and their countless words for “snow” but there are many instances in our language where different words describe the same thing.

It makes it all the more amusing when you come across a word which in itself can have two contradictory meanings – a contranym. Examples might be “oversight” or “dusting” or “buckle” or “fast.” And there are a number of others.

An oversight may be something overlooked or something you look over. Buckle can mean fasten or collapse. Fast is quick or fixed/stationary and dusting can be to remove dust or to sprinkle it!

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A jewel beyond price

2011 is the 650th anniversary of the office of Justice of the Peace.

Most people will be only dimly aware that over 95% of the judicial work in the courts of this country is carried out by unpaid volunteers who have taken an oath that they “will well and truly serve” the Queen “in the office of Justice of the Peace and do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill will.”

“Justices of the Peace” have in fact been around for even longer than that! After trial by ordeal, with its illogical outcomes of innocence only being presumed after the accused had succumbed to the ordeal by fire or ducking stool and survival of the ordeal meaning guilt, there was a period when offenders appeared before their villages or local communities where innocence depended on the number of “oath bearers” or “jurors” an alleged miscreant could muster. If he could muster more than his accusers, he was innocent. Better than trial by ordeal but still far from perfect!

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Finding the missing link

I promised to return to the subject of the missing link at the end of my last post when I said that:

“I will try and explain what I think he (Richard Susskind) meant and how this ties up with new legal structures, technology, LPOs and dead satellites falling to earth in my next post.”

I was a litigation lawyer for many years and with all the benefit of hindsight and from the privileged position of no longer having to earn my living by being a litigator I occasionally pause to reflect on where the litigation process and litigation lawyers are going. I worry when I see a profession that is unable to find jobs for bright graduates of the LPC. They would be of huge benefit to their chosen profession, if only they could be selected for a training contract to help them pay down the debt they incurred to get themselves through university and the professional exams now demanded of them.

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