Category Archives: Law & law makers

Postscript from Munich

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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

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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?

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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

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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

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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

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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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In search of the missing link

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Earthquake in Indonesia: thousands die, no Britons involved

This kind of laconic if self-centered headline has always amused me. We tend to think things are important if they affect us and less so if they do not. On that basis I wonder if we should have been concerned about the recent report from NASA that preceded one of its satellites falling to earth. The agency did not know when or where the satellite would drop but in order to assuage the fears of the populace at large said that it will be somewhere between Alaska and the tip of Southern America, it would be in late September but could be in October and, doubtless, we were all pleased to learn that there was only a one in 3,200 chance of satellite parts hitting anyone.

If ever there was a piece of more useless headline information, I have yet to see it. Presumably, the inhabitants of the whole continent of America would have been taking precautions for an event that had a real chance of catastrophe. After all, a one in 3,200 chance spread amongst about 500 million people is still a 0.000006 chance that someone might suffer from a severe headache when hit by part of the stray satellite falling out of the night sky, clobbering them on their way to work.

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We are not amused

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Did Queen Victoria actually say “we are not amused” or was it Queen Elizabeth I?

What on earth were they talking about? Does it matter? Well no, not really but it is fun to try and ascribe words to historical personages and even more so to adapt them to and use them in a more modern context.

Whether Victoria did not like the performance of Gilbert and Sullivan’s HMS Pinafore or whether Queen Elizabeth was not amused at Walter Raleigh smoking his new fangled tobacco in her presence, I suspect that historians will never know. I was intrigued to learn, however, that according to Princess Alice, the then last surviving granddaughter of Queen Victoria, in the late 1970s that her grandmother had told her that she, Victoria, had never uttered these words!

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Stuffs had strange names and were very expensive in the days of the Tailor of Gloucester

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Ancient legislation has been much in the news recently what with the 100th birthday of the Official Secrets Act of 1911 and the dusting off and scrutiny of the provisions of the Riot (Damages) Act 1886 by countless claimants and nervous police forces (and insurers).

The oldest piece of Statute law in the United Kingdom which has not yet been repealed is the Statute of Marlborough of 1267. Two provisions are still in force, namely the Waste Act of 1267 which seeks to prevent tenant farmers making waste on land where they are tenants and the Distress Act 1267 which makes provision for the recovery of damages (distresses).

Many people would say that an even older piece of legislation is Magna Carta of 1215, although the charter is not strictly speaking an Act of Parliament.

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End of the beginning

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Which is closest to your view of disclosure/discovery?

•Technology created the problem so technology needs to solve it.

•Electronic discovery is often the tail which wags the litigation dog, using up between 50% and 80% of the litigation budget.

•I am afraid not to know it because it dominates every part of the case.

•None of the above.

The debate goes on and what is surprising is how many divergent views there are about a subject which ought by now to be mainstream. After all, no litigator can now be doing his/her job properly if they do not at least consider the use of technology when deciding how to manage the data in the case or deciding on the strategy to be adopted.

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