I guess it won’t make any sense to compare or contrast past year’s events or developments especially when it comes to talking about technology or the internet. Still…it does make interesting reading if one can grasp the full extent of the changing technological landscape.

Since I am only able to recognize the changing calendar and as I have been on the move a lot over the past years, my newsfeed are via my friends or from social media sites. Being in Beijing means access to social media sites and blog sites takes on a new dimension. I have to re-invent how I connect with new friends and turn to the foursquare to ‘shout’ out my location or bearing. Would anyone find my identity and location in 2012? (see the movie?!)

Nothing to do with ediscovery but a reminder that I am in Beijing and a Chinese friend has a new business at www.tui3.com   My challenge is to learn mandarin (fast enough!?) such that I can use this site.

Before I say farewell to the noughties, here is a glimpse of what someone said ‘you need to know about e-discovery in 2010’.

Notice any changes? I can only recognize the change from 2009 to 2010.

Happy 2010.

Research into trust model(s) in the cloud and a new credit privacy rule (still in draft according to the report) in China.

A Chinese lawyer friend visited me (as I will be leaving town soon – an informal good-bye stuff) this week. Somehow we ended up discussing ‘justice’ in China over several cups of tea and goodies from Hong Kong.

One day I will write more…

Today, I received this article – Personal Information Protection in China – © 2009 Hunton & Williams LLP, New York, New York in my mail. Mmm… the local law in China (for me) is probably a bit like the stuff over tea and cookies which ‘justice’ can’t bite or should I say ‘chew and swallow’. In a way the piecemeal, act-by-act basis of introducing law or any act sounds like chewing and swallowing.

I guess e-discovery related news and information are slowly but surely spreading across boundaries. The spread is further amplified with the recent security related news stemming from China and also news that there are now more internet users in China than in the US. Are you surprised? (Do your google search if you need convincing).

I recently downloaded the online chat application, ‘qq’ with the view to help me improve my mandarin writing and reading. However, I was informed by my Chinese friend that the security aspect of qq is not ‘secure’. She further added that I can buy some ‘security’ if I am willing to pay. Mmm..without going into the details, qq uses a business model unlike Skype or Messenger. I doubt the ‘security’ model (payment application driven) will bypass whatever the higher authority has in place or in mind.
To me, dealing with e-discovery without knowing or being aware of digital forensics and the various security models (and also the underpinning or overarching laws and rules) is like driving across the international borders without a guide (local or specialist person) and/or a Sat Nav device/system. Which is more important, a human guide or a Sat Nav device? I guess the answer is ‘it depends…’?!

It depends on a multitude of human and non-human factors/elements and as shown by the GEC Conference, digital forensics and privacy laws are picked to address some of the challenges underpinning e-discovery in cross-border litigation. A recent publication from Herbert Smith, ‘A Guide to Dispute Resolution in Asia 2009‘ provides some handy information with mention of electronic communications, e-mails, electronic document and electronic filing but no mention of e-discovery. Maybe the next Asian edition/publication will feature e-discovery.

When parties are in disputes, do they think about the costs of getting their differences resolve? If they do they will think twice before going to court and/or litigate. Thinking about the costs associated with civil litigation is further aggravated with e-disclosure requirements. Also, if parties are not thinking about e-disclosure, the task has been done (in bite size – Phase 1) by the judiciary in England and Wales. The preliminary report on Civil Litigation Costs Review by Lord Justice Jackson has a chapter (15 pages) devoted to e-disclosure.

Even if you’re not interested in e-disclosure or do not want to get anywhere close to litigation or the courts, do take a look at Chapter 40. The preliminary report provides a general overview of e-disclosure (and also reviewed the Electronic Disclosure Reference Model (ERDM)?!- beware that this is not a generic framework for all e-disclosure) and also covers various costs aspects with examples of cases.

I am not sure how feedback are gathered and reviewed as the preliminary report also request for feedback. Here’s the extracted Conclusion:
8. CONCLUSION
8.1 Need to consider e-disclosure. In every substantial case where documentation is held electronically, consideration must be given to the problems involved with and the costs of e-disclosure. The electronic material may be so extensive that it is impracticable to print all documents out and then to proceed with conventional disclosure. In that event there is no alternative to e-disclosure.

8.2 Request for feedback. It would be helpful to hear from recent users concerning their experience of e-disclosure. In particular it would be helpful to hear from users whether and to what extent (a) any particular approach to e-disclosure has saved costs in particular cases and (b) conversely any approach to e-disclosure has caused wastage of costs in particular cases.

8.3 I have indicated in section 5 above some methods by which the costs of edisclosuremight be controlled. During Phase 2 I should be pleased to receive any comments on those issues. I should also welcome any other proposals for controlling disclosure costs in cases where the underlying project or transaction generated extensive electronic material. For example, if we introduce into our CPR some similar provision to FRCP rule 26(f)(3), might that help to reduce both the risks and the costs of e-disclosure (because the lawyers would be at less risk of accidentally waiving privilege)?

8.4 It would also be helpful to hear whether the costs figures supplied to me, and set out in section 6 above, accord with the experience of court users.

One would have thought that ‘Access to Justice’ in the information age would also mean access to justice. Perhaps the’ Woolf v Genn: the decline of civil justice’ debate provides more insight into the current state of civil litigation.

Also, my blog is linked from there. It’s the only blog I requested a link to.

My first event was ‘Resolving Business Disputes in Today’s China’ in New York City (organised by the JurisConference). It was a great event, great lunch and interesting lunch debate. Although the event has nothing to do with edisclosure/ediscovery, one of the speaker/panellist did say ‘we avoid ediscovery’. Maybe resolving disputes in today’s China are being viewed as ‘resolving disputes being the same as doing businesses’. Doing businesses in these parts of the world are still steep in the traditional ways of using and/or maintaining ‘face’ or ‘guanxi’. If you have guanxi, then ethical (like arbitrator’s biases or impartiality or independence) or trust issues just do not surface or are naturally imposed in the guanxi relationships. (Hence, Med-Arb is a natural way for resolving disputes in the Far East).

However, there’s more than one party in a dispute and if one of them is not accustomed to guanxi then the game of ‘where to go or which seat or which institution or who has the leverage/assets/ power to turn the table?’ provides the dispute drama. The game is not whether we can find the evidence or whether we need the evidence. It is not a ‘truth seeking’ game. Is that why edisclosure/ediscovery is avoided?

So, my next hob nobbing (for want of a better term?) event is at The Hague. The event was ‘Weighing the Facts: Information Exchange and Presentation of Evidence in International Commercial and Investment Arbitration’.
Note that ‘edisclosure’ was not in the title but there was a topic ‘The Present and Future of Electronic Disclosure in International Arbitration. It was a great pity that only a handful of people were at the second day (half day session only). On the second day, there was a detailed ediscovery presentation. It would have been a great finishing highlight if all the speakers/panellists could gather together (collaboratively?) and share their consensus or divergence views or experiences.
In case anyone is wondering what about the IBA Rules of Evidence? What about it? From what I’ve heard – No changes required now and also in the foreseeable future. Nah! No e-evidence rules required.

Instead, it seems that privilege and ethical issues will become increasingly problematic in information exchange or disclosure in international arbitration. No amount of notes/guidelines/protocols/rules/laws will help cement or create a smooth level playing field for the international players and parties.

What have we got left then? Hob nobbing and/or guanxi? We all know what is hot tubbing. Hob nobbing may potentially create more conflicts of interests (ethical issues) unlike guanxi relationships whereby ‘beneficial rather than conflicting’ interests are at play. More food for exploration!

Well…the wheels of justice chuckle along crankily with or without ediscovery/edisclosure. Maybe the good old fashion hob nobbing and/or guanxi are the new unwritten protocols/rules/laws for e-evidence. Only time will tell…

The Association of Digital Forensics Security and Law (ADFSL) fourth annual conference will be held in Burlington, Vermont, USA on May 20-22, 2009.
The conference description has many keywords and touches on a wide variety of topics and fields. Ah! a conference in beautiful Vermont. I have not been there, have seen beautiful pictures. Maybe if investigative work is done in beautiful settings, people may be more inspired naturally to collaborate and work together . Well… the conference organisers noted this : Today, many professionals are working with others from different fields – lawyers are working with IT managers, law enforcement are working with forensics engineers. Well, at least they are trying.

On a different scale, the third International Crime Science Conference will be at the British Library in London on 15th July 2009. Mmm another place I have not been to. Instead of highlighting about professionals trying to work together, ‘gangs and guns’ serve the medium. Perhaps this is the only distinguishable aspects between crime investigation and ediscovery/edisclosure for civil cases. I guess delineating or distinguishing data/computer/digital forensics and digital evidence will be covered by researchers. High drama though occurs in organisations, courts and private rooms.

If you’re into ediscovery/edisclosure stuff you will have heard of The Sedona Conference®. For those who have not heard of DESI, (I posted about DESI here) please check out the DESI III at ICAIL 2009 site.

As I am on The Sedona Conference® WG6 e-mailing list, I have received an invitation to announce to friends to submit their comments on The Sedona Conference® Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy & eDiscovery – Public Comment Version (August 2008).

Do please contact Ken Withers ( kwithers@sedona.net ) if you have any questions.
I have pasted the necessary information which I received from Ken here:

As many of you know, a new EU Article 29 Data Protection Working Party Working Document on pre-trial discovery for cross-border civil litigation, released 11 February 2009, recognizes the contribution of The Sedona Conference® in helping to bridge the cultural and legal divide between cross-border discovery and data privacy and protection. In particular, the Working Party cites The Sedona Conference® Framework for Analysis of Cross-Border Discovery Conflicts: A Practical Guide to Navigating the Competing Currents of International Data Privacy & eDiscovery – Public Comment Version (August 2008) as one of several works that contribute to a positive way forward to reduce cross-border discovery conflicts.

The Cross-Border Conflicts Framework will be a prominent part of the upcoming Sedona Conference® International Programme on Cross-Border Discovery and Data Privacy scheduled for June 10-11, 2009 in Barcelona, Spain. This Programme provides an extremely rare and timely opportunity to dialogue about ways to harmonize the competing interests of data privacy and cross-border discovery with Data Commissioners, governmental officials, leading jurists, privacy officers, corporate counsel, private practitioners and consultants. We need to finalize the Cross-Border Conflicts Framework in advance of the International Programme in June. In order to do so, we need all remaining public comments by 24 April.

The public can access both the public comment version of the Framework and information about the Programme from the opening page of The Sedona Conference® web site at http://www.thesedonaconference.org. The Framework is found on the right side under “Recent Publications” and the Programme agenda, brochure, and registration application form can be found by clicking on the programme title under “International Programmes.”

Comments on the Framework may be submitted in Microsoft Word format to Ken Withers at kwithers@sedona.net or by fax to (+1) 866-598-9649 before midnight GMT 24 April 2009.

Thank you all for your contributions to the Sedona Conference® Cross-Border Conflicts Framework commentary and for your continued support of The Sedona Conference® Working Group on International Electronic Information Management, Discovery and Disclosure (WG6). If you have any questions, please contact me at kwithers@sedona.net.