I suspect that the owners of Kodak are ruefully aware of this today as I read that the company has filed for Chapter 11 protection from bankruptcy in the US with liabilities exceeding assets by a staggering $1.65 billion. This does not necessarily mean the end of Kodak as a business but it is a sad day when the inventor of that ubiquitous camera, the box Brownie, loses its way so dramatically. Millions of people will remember the Brownie and I am told that even Neil Armstrong took photos on the moon with one.

Kodak almost got it right, as it astutely anticipated the advent of digital photography but then failed to foresee the rise of the likes of Facebook and other sites where photos can be viewed and shared resulting in the collapse of the market for printing photographs. Effectively Kodak was lost once someone worked out how to plug a camera into a computer and share and display photographs without the need to print them off and stick them in an album.

Despite the fact that I bought a roll of film in the past week (24 exposure and black and white, if you must know) and can look forward to slotting the capsule into a camera and pulling the bit of film hanging out of the end across the aperture to fix onto the roller on the other side just like we used to do, I have to accept that this procedure is not the way of the future. No more snapping the back of the camera shut and checking that the number of exposures appears in the counter before pointing and clicking and winding on. No more keen anticipation while you wait for the pictures to be developed and returned (but possibly also no more disappointment when you find that the film was over exposed or did not take the pictures at all!)

The world of handling disclosure has been going through the same game changing process for some time now. It is rare now to come across a litigation lawyer with no appreciation that life has changed and that expensive and time consuming linear human review is no longer the gold standard for modern document review. Just as photography has changed and digital is now the name of the game, so it is now imperative that lawyers at least consider ways in which technology may be able to assist in the disclosure process. There is a lot of technology out there, and its use or possibly the way in which it is used will not always be appropriate, but not to have an understanding of what can be done and what is available and not to consider how the technology may help is today as inappropriate as it was for the army commanders Lucan, Raglan and Cardigan to expect the Light Brigade to charge the Russian guns in Tennyson’s “Valley of Death” at the Battle of Balaclava in 1854.

Life has changed. Whether it is for the better, we will have to wait and see but there is a growing body of evidence and case law which suggests that it is and hard evidence exists that time and money is being saved in the process.

What would our wise Brown Owl make of all this? Though I tend to think of little brown chocolate biscuit cakes when people talk about brownies, of course the real Brownies are little girls who troop off to meet their leader Brown Owl one night of the week as a precursor to becoming Girl Guides. They used to wear brown uniforms festooned with badges gained as a result of different achievements and had a great fun time by all accounts. But Brown Owl would be the first to recognise that times have changed in that the main uniform now appears to be bright yellow according to the brownie website.  It cannot be long before someone demands that the Brownies be known by another name; my guess is though that, being a wise bird, Brown Owl will take it all in her stride. Her advice to her charges, to the likes of Kodak and to any reluctant lawyers out there cleaving to the old ways of paper review, is obviously “adapt or die.”

It could not be simpler than that!

Photo: Brown owl on Public Domain Images

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:

• A right to portability enabling individuals to transfer data between companies more easily.
• A right to be forgotten! If you want to delete material from Facebook, the company will be forced to allow you to take the information down.
• Severe financial penalties will be introduced for leaking data. By severe, I mean a significant percentage of company turnover.
• One EU wide Data Regulation Authority which will not be based in Britain where we are regarded as having fairly lax data privacy rules which the EU doubtless thinks we should change.

The new rules are apparently essential to protect consumers and reduce bureaucracy according to EU Justice Commissioner Viviane Reding. Now that will be a first! An EU proposal that reduces bureaucracy? I can hardly contain my impatience.

While we will in all probability all have to get used to this brave new world, I advise against holding your breath. The proposals may well be published on Wednesday, but it will take years for the rules to be refined and amended and passed by national governments. My best guess is two to three years before they are finally enacted and by then, who knows: Greece and others may have left the euro, President Le Pen of France may have lost another “A” from her country’s credit rating and Libya and an independent Scotland may be applying to join the EU, if in fact it still exists.

As ever, however, I will keep you informed of developments and from time to time I may even share my views about them with you. In the meantime, I am off to the Land of the Free (where they have their own interesting and different data privacy rules) about which I will write more on my return.

Back to today and I was inspired to think about Burns by an aside from my new colleague John Lapraik. I learned that in the dim and distant past (the 18th century) there was a Scottish poet bearing John’s name who was a friend of Burns’ and who just happens to be John’s something times great grandfather.

However delightful it was to live in Ayrshire and rub shoulders with the rather better known Mr Burns it seems that Lapraik’s books and poems have all but disappeared. I cannot judge whether this is a loss to Scottish literature but no such scruples deterred one James Maxwell. A contemporary of both Burns and Lapraik, and one who did not approve of the latter’s writings, he was moved to comment on their disappearance as follows:

For some devoted theirs unto the flame;
Bumfodder also others made of them.
Some turn’d to dung, and others they were burn’d,
And so to dirt and ashes all were turn’d.

Sounds a bit harsh to me! Obviously no wee tim’rous beastie he.

[You'll find more on John Lapraik the elder here: www.lapraik.com]

Whatever your predilections in the poetry department, it will come as music to many ears that Millnet has been certified under ISO 27001 International Standard for Information Security Management Systems. This has become essential in respect of many of the services we provide to law firms and other clients and we are delighted.

And so time moves on! Millnet is off to New York (fast becoming a very important place for our business) at the end of next week to attend LegalTech 2012 and to see clients and colleagues “over there.”

I doubt whether New Yorkers celebrate Burns night as much as they go to town on their Irish connection in March but I anticipate a fair amount of eating and drinking in a busy schedule over six days. If I am not to miss them, I had better get the haggis, neeps and tatties on board before I go.

[Editor's note. Not so fast with the haggis exports Charles. Imported haggis was banned by the United States because its food standards agency has a prohibition on sheep’s lungs in their food products. Traditional Scottish haggis is made with sheep’s heart, liver and lungs and in addition to the sheep lung ban, the US also prohibited the use of offal from the United Kingdom since the BSE outbreak in 1989. Unlike us Brits (this one anyway) Americans don't seem that fond of offal on taste grounds alone, even without the FDA's strictures.  It seems that with food regulations, as in the sphere of data privacy, there are notable differences in the rules between the EU and the US.]

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.

Ancient as I am, I have succumbed to some of this! I am on LinkedIn for professional networking reasons and I find this is reasonably successful and certainly worth the time I devote to it. I also blog for Millnet (as you will be aware if you are reading this!) and those blogs are often tweeted by me or my splendid and ever watchful editor,  Millwright, aka Alan West. I AM on Facebook but only as part of a fledgling Millnet company site/page and I have no current intention of taking the matter any further, if for no other reason than for fear of the wrath of my children, who have made it clear in no uncertain terms that they do not expect to see their father there! Incidentally I was amused to find that none of my children is a blogger or a tweeter, but there you are, you cannot have everything!

But it will not go away! If you want to find out about the real thoughts of the likes of Diane Abbott, the apparently maladroit Ed Milliband or Peter Mandelson, then go to Twitter or pick up a newspaper where their innermost thoughts are reported daily, or sign up to one of the many social media sites and start following people. It is in fact incredibly easy and later this year Twitter will celebrate its 5th birthday. How on earth did we manage without it? After all, by mid-2010 more than 70 million tweets were posted every day!

More seriously, though, I was delighted recently to make the acquaintance of Andrea Ward who is a Senior Associate at the London office of US law firm McGuire Woods. Andrea advises on all aspects of U.K. employment law and has extensive knowledge and experience of employment tribunal litigation, for all types of claims. In addition, she regularly advises on U.K. data protection matters for domestic and international clients and is particularly interested in the challenges for employers associated with social media and IT use in the workplace, including the boundaries of employee monitoring and privacy rights. During the course of a recent meeting with her she drew my attention to an employment tribunal case in May 2011 called Whitham v Club 24 Limited T/A Ventura, which is the first judgment I have seen in this jurisdiction on the question of the privacy or otherwise of musings on Facebook.

Readers of this blog will know that I have in the past referred to a number of decisions in the courts in the US on this very subject, but, as far as I am aware this is a first for us this side of the pond. You can access the judgment via the link above (and my case note will appear in the resources section of this blog soon) but the case appears to be saying that inappropriate comments posted on a Facebook page can be taken into account when considering a claim for unfair dismissal. What price privacy on Facebook?

The moral of the tale is as before; you post on Facebook or similar sites at your peril. If you do not want others to see what you have said, do not be fooled into thinking that the privacy settings will be sufficient. If you become involved in litigation they almost certainly will not be enough if the other side can argue that what you have or may have written is, or may be, germane to the dispute.

If more ammunition were needed, I have recently read via LinkedIn the predictions for 2012 by D4 e-Discovery. You can see them here – Top 4 from D4 – eDiscovery Predictions for 2012 - and I refer you to item one because it confirms that the US courts are going to town on this subject and cites four instances including our old friends McMillen v Hummingbird Speedway, Zimmerman v Weis Markets and Lester v Allied Concrete Company as well as a case called Crispin v Audigier. The article gives a short note on each case and the lesson to be learned is “Courts are allowing opposing parties unfettered access to social media accounts and plaintiffs’ counsel are finding themselves in unchartered territory. This is just the beginning and 2012 will see even more cases involving social media and decisions regarding preservation, disclosure and access to that information.”

As I have said, you tweet (etc.) if you want to, but watch out when it comes to disclosure.

Coming back to work after an extended break is never easy. At least for me and most others, I suspect this to be true. It does not matter if you love what you do, it still takes time to get back into the groove.

I ended the year on a note of optimism for 2012, something not all commentators managed to achieve. Rain squalls apart, (and this one soon passed), the New Year has started with two pieces of excellent news for Millnet.

• Firstly, we are being joined by John Lapraik, formerly a partner at Kennedys. John starts with us this week with a wide ranging role which includes the provision of e-disclosure advice, project management and working on internal process improvement. John used to be responsible for e-disclosure issues at Kennedys and will be an excellent resource to the team at Millnet and to our wider client base as he brings all that practical, hands-on common sense and gravitas which a partner in a major law firm acquires. The fact that he used to be my articled clerk (in the days before training contracts) provides an additional interest, at least for me!
• Secondly, Millnet is delighted to join the e-Disclosure Information Project. The sharp eyed among you may have already noticed that our logo is up on the project site. Set up by Chris Dale some years ago, Chris by himself and through the project has become the leading UK based commentator on the world of e-disclosure. In fact, of course, he is more than that as he is regularly sought out as a speaker at international and national conferences and his advice is also sought by judges and lawyers alike. I look forward to working with Chris in the coming months to bring a greater understanding of the world of e-disclosure to our clients and their lawyers. Our aim is to ensure that the benefits of technology and the ways in which its use can make a lawyer a better lawyer for his/her client are better understood.

We are thrilled by both developments. They are evidence that my optimism for 2012 is well founded.

It is what getting into the groove is all about.

On the first day of Christmas, my true love gave to me…
A Partridge in a Pear Tree.

The second verse:

On the second day of Christmas, my true love gave to me…
Two turtle doves
And a partridge in a pear tree.

…and so forth, until the last verse:

On the twelfth day of Christmas, my true love gave to me…
12 Drummers Drumming
11 Pipers Piping
10 Lords-a-Leaping
9 Ladies Dancing
8 Maids-a-Milking
7 Swans-a-Swimming
6 Geese-a-Laying
5 Gold Rings
4 Colly Birds
3 French Hens
2 Turtle Doves
And a Partridge in a Pear Tree.

But what does it mean?

Theories abound but, in the light hearted spirit with which this blog is associated, together with yet more unsubtle hints about ways in which the legal profession might be encouraged to tackle the issues of electronic disclosure, I thought I would attempt my own explanation of the song. The origin of the song is obscure, so I will not have to apologise to anyone for mangling their original ideas!

You need to understand that the singer is a lawyer who is the lucky recipient of “gifts” from the bringer of Christmas cheer, a potential new client Mr Truelove, who is keen to ensure that his chosen lawyer understands the rudiments of e-disclosure.

A Partridge in a Pear Tree: this must mean a general willingness to consider techniques which may assist in making the process of litigation more cost effective for the client while at the same time allowing the lawyer to add value by demonstrating expertise not only in the law but also in the process of getting at the issues and achieving a good result for the client Mr Truelove.

Two Turtle Doves: Knowledge of at least two e-discovery providers so that when pressed, the lawyer may know to whom to turn. It is generally too late to start this exercise by the time the case has begun.

Three French Hens: No jokes here about “les grenouilles” as I do not intend to stoop so low as to metaphorically kick a man (La France?) when he or she is down. Mr Truelove regards it as essential that his chosen law firm is familiar with some of the major concepts behind e-disclosure. There are more than three but how about (1) linear review is ruinously expensive; (2) electronic documents should not be printed out: and (3) e-disclosure providers should be regarded as experts in their field (which they are) in the same way as Counsel or a medical expert.

Four Colly Birds: At least once a month keep up to date with general developments in the field of e-discovery by looking at relevant and helpful sources of information, eg: blogs (of course!!), The Society of Computers and Law, articles written by your peers and once a year, if not more, attendance at a conference or training session on the subject. Remember that Jackson is urging those involved in training the profession to start offering training to lawyers. How long before it becomes compulsory?

Five Gold Rings: The gold standard for e-disclosure: be familiar with Part 31 CPR, the Practice Direction 31B, the Electronic Documents Questionnaire (not used nearly enough yet), the cases (there are not that many, see resources section) and the changes to Rule 31 proposed by Lord Justice Jackson and which may well become law by October 2012.

Six Geese-a-laying: As the football fans amongst you would say, we are now getting to the results section. The fruits of adherence to the first five stages should begin to become clear in terms of the strategy to be adopted in the case regarding the documents involved and where costs can be saved. The number of advantages perceived at this stage is irrelevant as long as they appear! They will.

Seven Swans-a-Swimming: There is always a lot of work to be done behind the scenes (under the water) to ensure that the litigation runs smoothly or at least appears to do so. Important matters include an understanding of the objectives and the adoption of a suitable workflow to ensure that those objectives are achieved. Also it is vital to work closely with your provider of litigation services to ensure the project remains on track.

Eight Maids-a-Milking: Do you remember the cartoon of the claimant standing at the head of the cow and the defendant at the tail both pulling like mad while the lawyer sits calmly on his stool milking the animal? Enough said! Lawyers can and do of course make good money out of litigation, and it is right that they should do so, but clients will not be too happy if they feel they are being milked. An eye on costs savings and better and more efficient ways of delivering the service will always be appreciated.

Nine Ladies dancing: The overall result is a success, the client is happy and the project has been brought to a positive conclusion. What is there not to dance about?

Ten Lords-a-Leaping: I suppose that the successful use of e-disclosure techniques may mean that their Lordships, as they used to be known or the Supreme Court Justices as they are now known in our determinedly more egalitarian times, are less likely to be required. Congratulations by the way to the two new appointees Lords Reed and Carnwath who will soon be joined by Lord Sumption once he is free of the Russian oligarchs.

Eleven Pipers Piping: General celebrations for a job well done!

Twelve Drummers Drumming: Not so much a celebration but a quiet recognition amongst your clients and your peers that you are a serious force to be reckoned with. New jobs will certainly follow once you have proved your worth. Who knows, your opponents may also be willing to endorse your efforts and send you instructions in the future when they acknowledge that you did a very good job. As good a way as any to drum up new work!

The Twelve Days of Christmas traditionally end on the Feast of Epiphany (January 6th) and I am hoping that means that I need not publish another post before then!

A very Happy Christmas to you all!

Many people think that he was a manipulative and unprincipled devil, that he wrongfully inherited the throne and on the way murdered the Princes in the Tower or at the very least arranged for their disposal. As the only then living legitimate sons of King Edward IV and his Queen, Elizabeth Woodville, they certainly stood between him and the throne in 1483 and the elder of the two, Prince Edward, was proclaimed King as Edward V on his father’s death but disappeared before his coronation.

Much as I love this controversy this is not the time to delve into the conspiracy theories which abounded then and still reverberate in certain circles to this day (if you are interested see The Richard III Society website).

All I will say is that there are sufficient doubts about Richard’s culpability to ensure that a jury would acquit on the basis that they could not be sure of his guilt beyond all reasonable doubt. Whoever is right, Richard did not enjoy the spoils for long before, bereft of a horse, he succumbed to the forces of Henry Tudor at Bosworth Field on 22nd August, 1485.

One of the joys of any silly season is the errors which others make. Always thankful that it is not me, I am constantly amused by reports of instances where others have fallen foul of the law of unintended consequences. One such example recently came to my attention and concerned the story of a lovelorn swain berating his female companion of one date’s standing for her failure to respond to his efforts to contact her again. Sadly for Mike, Lauren is unlikely to be the girl of his dreams anytime soon after his email to her was made public by her, following what she described as a first “horrific” date. Read the report here: How not to get second date: Banker’s 1,600-word ‘email fail’ goes viral, Metro, 8th December, 2000.

Schadenfreude is a word which only the Germans could have coined. Laughing at the discomfiture of others is a pleasure few of us can resist and I am not talking about the current state of the euro either, but if anyone was ever in any doubt, it is increasingly clear that care must be taken over intemperate emails for exactly the same reason that those of us old enough to remember writing letters always used to place the first draft of angry responses in our bottom drawers overnight and almost always destroyed them unsent the following day. It made us feel better at the time and by not sending out the intemperate early response certainly saved later embarrassment.

The feeling of optimism described in my post Banging on was given a boost at the weekend when I was able to catch up on recent posts by Chris Dale. Always worth reading, there are some which catch the eye and make you chuckle, not least because there is a certain element of Schadenfreude involved when I read that he is yet again stuck on a train or has been irritated by the shortcomings of public servants.

I know he will not mind if I refer with approval (well, at least partially) to the following UK relevance in a Practitioner Guide to eDiscovery from the New York State Bar Association  [e-Disclosure Infomation Project, 7th December, 2011] and to Prosecution lawyers don’t want to take the CPS tablets [e-Disclosure Infomation Project, 12th December, 2011] .

The first post refers to an e-discovery guide produced by the New York State Bar Association which contains practical tips which will be of interest to all serious practitioners of the e-disclosure/discovery art but also a glossary of terms which you can access by clicking on the NYSBA website highlighted in the article. As I have not looked for some time at the glossary that is situated on the right hand side of this blog’s home page, I found the contents of this US glossary instructive. Of course it is US-orientated but none the worse for that as many of the concepts resonate here in this jurisdiction too.

The other post on his Google+ site concerns what Chris calls “staid old Norwich.” Now I do not often dare to disagree with Mr Dale but I draw the line at his description of Norwich as “staid.” The context in which he uses the word proves the contrary in that it concerns a report (that I had heard about locally earlier but which Chris was quick to blog about) that an application has been made to local planners for permission to change the use of a shop in Norwich to a topless barbers. I very much doubt that Chris was concerned about the propriety of a topless barber establishment as he was blogging about the proposed use by Norfolk CPS of tablet computers in the drive towards paperless courts, but I cannot let his description of Norwich as staid pass unchallenged. After all, the only other place where such an establishment exists is in Australia, where the business is said to be brisk, and there are no comparable delights in Chris’s home town, Oxford. One-nil to Norwich City I say.

If Norwich is up, it seems that Norway may be down! According to recent press reports, there is news that the country is running out of butter. It seems that fashionable diets and unproductive dairy cows have contributed to Norwegians eating up all their stock of butter, which is used in great quantities for traditional Norwegian Christmas fare. Let’s hope it doesn’t spread to the UK.

Despite that, I cannot help feeling a warm glow today. While we all know that “Faire words butter noe parsnips” and that we actually have to put into practice some of the fine things all bloggers (including yours truly) have urged upon us through the year, it is a great comfort and a source of no little amusement as we slip towards Christmas on a tide of too many lunches and not many fewer dinners, to know that things can surely only become less gloomy in 2012. Something for which we can be profoundly grateful!

So I will not tell you about my recent train journey to Liverpool courtesy of Sir Richard’s Virgin Pendolino trains where, at a totally unscheduled stop in Crewe which was going to make us late in any event, the train came to a grinding halt and the “train manager” (whatever happened to the guard?) announced a complete loss of power and urged anyone in the disabled loo not to panic when the doors failed to open!

35 minutes later, power was mysteriously restored and we arrived some 45 minutes late into Lime Street to find there were no taxis. I promised not to tell you about all this but instead of being grumpy I found the extra time useful to catch up on some reading and to reflect on the end of 2011.

Will it go out with a bang or a whimper? I have already posted some predictions for 2012 [Old Holloway's Almanack, 1st December, 2011] and the time will doubtless arrive to review 2011 but I find myself curiously optimistic. Just as well I was not in the loo when the train stopped as my mood would have been somewhat different once released.

I have posted items recently dealing with a number of judicial pronouncements both in this country [In the race to modernity..  8th December, 2011] and in the United States [Pandora's Box, 6th December, 2011]. On my powerless train there was just enough light on a windy grey December morning to read two of Lord Justice Jackson’s latest lectures in his implementation programme series on the subjects of avoiding and resolving construction disputes and Third Party Funding or Litigation Funding as it is becoming known.

Jackson obviously hopes that all his reforms will come into effect some time in 2012 and as part of a “Big Bang” of reforms. I am not so sure that will happen but if it does not it will not be because Lord Justice Jackson has not put enough effort into persuading all concerned that these reforms are necessary if we are ever to curb the ever rising costs of litigation.

It appears that Commercial Court Judges have already undertaken e-disclosure training and others will have training provided next year. It is hoped that providers of CPD training for solicitors and counsel will come up with similar training. What is clear is that a far higher degree of knowledge of e-disclosure amongst those appearing at CMCs will be expected in future and that must be a good thing because inappropriate use of technology can often be as bad as no use at all in proper circumstances.

I get the feeling that there are a number of strands coming together to make a meaningful change to the way litigation in general and disclosure in particular are handled in this country. As Jackson says, “…the first case management conference should be a real event at which the court takes hold of the case and gives directions which will focus the factual evidence, the expert evidence and the disclosed documents on the real issues between the parties.”

Amen to that.

Add to that the development and expansion of litigation funding (Investec’s recent entry into the market for example) and the arrival of the Association of Litigation Funders and the Code of Conduct prepared by the committee chaired by Michael Napier QC (Irwin Mitchell’s chief for many years and soon to settle into well-earned retirement?) and I think the future of litigation looks brighter than for some time.

Optimistic? Possibly. Perhaps too many early mince pies and fattening alcoholic drinks, but I sense more joined up thinking here. Someone told me recently that a case of Chateau Lafite 1982 cost about £300 then and is now worth about £25,000! The cost of litigation is still rising but there are moves to stem the rise which may well be successful and technology will play its part particularly as the cost continues to fall.

Lord Justice Jackson may not get his Big Bang in 2012 but I am not betting on a whimper either.

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.

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.

I want to draw your attention to more decisions of the US courts on the issue of social media and spoliation, as they call it, or as we would more readily understand it, the deliberate withholding of material evidence.

Let’s deal first with the case of Mr Matt Murray. In a case in Charlottesville, Viriginia, Judge Edward Hogshire imposed sanctions amounting to $572000 on Mr Murray for hiding evidence and deliberately trying to deflect the blame for his failings to the court. The court order may be viewed here and all that needs to be said is that Mr Murray has left his law firm (and it appears they had no idea what he was doing or not doing) and indeed is believed to have left the law altogether.

Moving on to Pennsylvania’s Common Pleas Court and the judgment of Judge Richard J Walsh on the discoverability of information on Facebook in the case of Largent v Reed (as reported in Law Technology News on 23rd November, No Reasonable Expectation of Privacy on Facebook, Pa. Judge Says):

“Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

This case is only the latest in a long line of cases which I have mentioned before (such as McMillen v Hummingbird Speedway Inc)  which make it clear that use of social media is increasingly becoming a potential minefield for litigants who think it is safe to post all kinds of personal information apparently believing that it is safe from view except to those to whom they choose to permit access.

But to describe Facebook as “an online lockbox of secrets” takes judicial language to new heights for which one can only be thankful to Judge Walsh.

There is one other point of interest in this case; the case report mentions the Stored Communications Act of 1986. As I understand it, the Act provides that the account owner must be approached for online details whereas the internet service provider is protected from suit. In Largent v Reed the Judge decided that the Act did not apply because the information being sought was from the Plaintiff/Claimant direct and was not in the form of a subpoena directed to Facebook (in which case I assume the SCA may have applied and the application for disclosure would have been rejected).

“Lockbox” or not, it is now surely crystal clear that you post information in social media at your peril. If you fall foul of this, and go into court to argue that such information is not disclosable, you can expect to be faced with a Pandora’s box from which all Hope has vanished. In such an eventuality, the likes of Judge Walsh might be moved to quote Dante’s famous inscription over the gateway to hell, “Abandon hope all ye who enter here.”

Photo:19th cent. engraving, Pandora’s Box, based on a painting by FS Church (Wikimedia Commons)