I believe this was the first time #DPD2014 was celebrated at City University. It will not be the last time.

Next year we will plan well ahead of the January date.

My slides for the talk in pdf.

My talk was a condensed version of my talk for the BCS Law-IRMA event in September 2013. However, I introduced a bit about my PhD research theme.

Date :
Thursday, November 15, 2012
9:00 AM – 5:00 PM

In searching in this blog for past events that I’ve attended, most of the links and contents have changed and/or disappeared!

Here’s the agenda:
8.30
REGISTRATION AND COFFEE
9.00
CHAIR’S INTRODUCTION AND CONFERENCE OUTLINE
Chris Dale, The eDisclosure Information Project

A brief overview of the rules and cases used to challenge the conventional view
• Goodale: if the court can make any order, you can seek any order
• The pending Rule 31.5 to encourage active judicial decision-making
• How can you persuade your opponent and the judge to your point of view?

9.20
THE QUESTIONNAIRE/PRACTICE DIRECTION/GOODALE
Moderator: Chris Dale, The eDisclosure Information Project
Panellists: Vince Neicho, Litigation Support Manager, Allenn & Overy LLP
Senior Master Steven Whitaker, Senior Master of the Supreme Court of England and Wales in the Queen’s Bench Division, the Queen’s Remembrancer and a former barrister
Kate Paslin, Associate General Counsel – International, AccessData Group

The Questionnaire
• When do you need to complete the Questionnaire?
• What value does it have, even where it does not necessarily apply?
• How do you gather the information early, without incurring significant time and expense?
The Practice Direction
• When does the Practice Direction apply?
• What obligations arise for discussion and cooperation?
Goodale
• This session will assist you in deciding what you really need on your own side and developing the arguments which support any derogations from the stringent obligations under Rule 31.6.

10.30
NETWORKING AND REFRESHMENTS BREAK
11.00
COSTS AND TECHNOLOGY
Moderator: George Socha, President, Socha Consulting LLC
Panellists: Browning Marean, Senior Counsel, DLA Piper US LLP
Dominic Regan, Professor, City University of London
Johannes Scholtes, CSG, ZyLAB
Drew Macaulay, Director, First Advantage Litigation Consulting

Costs
• Costs estimates: how to gather the information and
estimates
• Identifying the certainties and uncertainties
Technology
• What are clustering, email threading, and predictive
coding?
• What do these tools do and what are their strengths
and limitations?

12.15
NETWORKING LUNCH
13.30
HOW SHOULD YOUR LAW FIRM STRUCTURE ITS eDISCLOSURE TEAM?
Moderator: Browning Marean, Senior Counsel, DLA Piper US LLP
Panellists: Vince Neicho, Litigation Support Manager, Allenn & Overy LLP
George Socha, President, Socha Consulting LLC
Matthew Davis, Litigation Support Lawyer, Hogan Lovells International LLP
Robert Lewis MBE, Global Director, Barclays CFI/ eDiscovery
David Kemp, Autonomy

Competition: Not just outsourcers, but also clients, consulting firms, and barristers
• Outsourcing:
1. Processing: how do you deal with the processing of ESI? Should you outsource it? If so, when?
2. Document review: what are you outsourcing? What role will your law firm play on an “outsourced” review?
• Staffing: What sort of people would best manage eDisclosure in a law firm or in-house department? How do you find the most appropriate staff, train them, and then learn from them?

14.45
NETWORKING AND REFRESHMENTS BREAK
15.15
OVERCOMING THE CHALLENGES OF PRESERVATION AND COLLECTION
Moderator: Vince Neicho, Litigation Support Manager, Allenn & Overy LLP
Panellists: Browning Marean, Senior Counsel, DLA Piper US LLP
George Socha, President, Socha Consulting LLC
Mark Surguy, Legal Director, Dispute Resolution & Litigation Group, Eversheds
Senior Master Steven Whitaker, Senior Master of the Supreme Court of England and Wales in the Queen’s Bench Division, the Queen’s Remembrancer and a former barrister

Preservation
• What are the obligations in a jurisdiction which lacks the US formal concept of legal hold?
• What are the implications of Judge Brown’s statement in Earles v Barclays Bank to the effect that companies who expect litigation must be ready for it and should have the tools and processes to manage it?
• What does the warning in Paragraph 7 of the PD (to advise your clients to stop deletion) really mean?
• How do you keep alert to the Rybak-type situation where your client or his opponent may have deleted data deliberately?
Collection
• Considerations: How? How much? Where from? With what resources? By whom?
• What are the implications of over- or undercollecting?
• Who needs to talk to whom and with what agenda?

16.30
CHAIR’S CLOSING REMARKS AND RECAP

Information Risk Management & Assurance

Specialist Group

Have you heard of Electronic Discovery/Disclosure?

Tuesday 8th November 2011

18:00 Registration & buffet

18:30 Presentation

19:30 Networking Session

Venue: The British Computer Society

First Floor, The Davidson Building, 5 Southampton Street, London, WC2E 7HA

Speaker:  Cher Devey

Event Details

Have you heard of Electronic Discovery/Disclosure? If not, come and be enlightened, and if already an expert, do please come and share your stories and enlighten us all.

The format of the evening will be driven by dialogue with attendees with a short opening talk on what is Electronic Discovery/Disclosure and why IT folks need to know this.

I was recently asked (by a non techie) ‘what is twitter?’ I said ; An online system for you and your friends to announce stuff like; ‘I’m off to bed’ or ‘so and so did this/that’ in 140 characters. She didn’t get too excited with my answer!

Anyhow, I did tweet on the Fulbright’s 7th Annual Litigation Trends Survey Report and also IBM’s acquisition of PSS Systems. Both events worth following up to help me connect up the dots – in simple terms from people to process to technology to the court.

In the Survey Report under Electronic Discovery, there was a survey question which asked all respondents; To what extend do you believe the legal guidance regarding a litigant’s duty to preserve electronic and other material in anticipation of an investigation or litigation provides sufficient clarity regarding the scope of material that must be preserved?. The majority of respondents say it is not sufficiently clear.

I wonder whether this question if surveyed again next year will produce the same result. My guess is that it will, even if the UK respondents have grasped the newly amended CPR -PD31B Disclosure of Electronic Documents.
As regards the scope of preservation, the amended PD31B states; ‘As soon as litigation is contemplated, the parties’ legal representatives must notify their clients of the need to preserve disclosable documents. The documents to be preserved include Electronic Documents which would otherwise be deleted in accordance with a document retention policy or otherwise deleted in the ordinary course of business’. Note: not just preserve documents but ‘to preserve disclosable documents’.

The PD31B further provides guidance/direction on ‘what constitute reasonable search’.
Clear enough to connect all the dots as required for ensuring a defensible disposal?

Interestingly there is a question in the Electronic Documents Questionnaire; ‘Do you have a document retention policy? This question seems to be seeking for a simple need to know to a complex policy. Like being asked ‘Do You Twitter?’. Yes/No, so !?

Perhaps a better question is; what kinds of procedures or industry standards/models/practices are in place to address data retention needs? I guess it depends on what the PD31B question is intended to review or capture.
Maybe I will suggest this question (not the PD31B question) for the Fulbright’s 8th Annual Litigation Trends Survey.

Next reminder – to blog about another missing dot which I raised here which appeared to be addressed by folks at CGOC.

A new Practice Direction is introduced to regulate the approach practitioners should take when considering material relevant to a case which is stored electronically. In particular it aims to focus the parties on the sources of electronic material and give guidance to those with less experience of dealing which such issues. This will apply to cases that are or likely to be allocated to the multi-track. The rule change supports the new Practice Direction by confirming that the questionnaire may be treated as a disclosed document. Note: Form N150 is amended to support this change.

A typographical error in PD31B (Question 8 in the questionnaire) has been identified.

Please Note: Question 8 in the questionnaire should read:
8.

If the answer to Question 6 or 7 is yes, state whether (a) attachments to e-mails (b) compressed files (c) embedded files and (d) imaged text will respond to your Keyword Searches or other automated search.

For the contents and details of this Practice Direction click here

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.

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.

Yes! E-Discovery and E-Disclosure or Information Exchange or handling electronic data or digital evidence are getting their footprints at the beautiful Peace Palace in the Hague. Thumbs up to the organisers ! I will be going. I have been to the Peace Palace (invited by a lawyer friend who gave a lecture there couple of years ago) and look forward to seeing the place again.

For my own reference, here are some of the topics spread over two days.

• E-Discovery: A Look Behind the Curtain—Tools and Techniques
• The Present and Future of Electronic Disclosure in International Arbitration
• Evolving Principles of Information Exchange:Consensus and Divergence
• Cross-Cultural Problems Involving Exchange of Information
• Privilege and Ethical Obligations Involving Production and Protection of Evidence
• Expert Evidence in International Arbitration:Are Standards Needed?
• Privilege and Ethical Obligations Involving Expert Evidence in International Arbitration: Are Standards Needed?

Besides giving the Information Commissioner tougher powers, organisations will need to improve transparency and accountability when dealing with personal information.

From the website, Jack Straw Justice Secretary said:

‘As new technologies have developed, the secure storage and careful sharing of personal information held by both the public and private sectors has become paramount.

Strong regulation and clear guidance is essential if we are to ensure the effective protection of personal data.

The changes we propose today will strengthen the Information Commissioner’s ability to enforce the Data Protection Act and improve the transparency and accountability of organisations dealing with personal information. This is very important if we are to regain public confidence in the handling and sharing of personal information.’

So now organizations will also have to add ‘sharing of personal information’ to their corporate governance policy or other ‘know your customer’ or ‘know your data’ policies. How organizations will deal with the data protection, privacy and sharing requirements will certainly add more drama to the arena of edisclosure or ediscovery.

Pretty soon organizations will also have posters on ‘Beware of Data!’. With a list of Do’s and Don’ts (like the ‘Health and Safety’ Notice). I hope the Do’s and Don’ts won’t be 100 pages like the guide from the Information Assurance Advisory Council (UK) (IAAC).

The IAAC published the Second Edition of the Directors and Corporate Advisors to Digital Investigations and Evidence. According to the IAAC website, the purpose of this guide is to make directors and, managers and their professional advisors aware of the issues involved in collecting, analysing and presenting digital evidence. The report can be downloaded here.

A great pity that the guide uses the terms ‘Forensic Computing’ and ‘Forensic Readiness Plan’’and at the same time stipulated that: ‘Although this guide is designed for use within the United Kingdom and the descriptions of the law refer to English law, many of the principles are universal in all jurisdictions’.

I just did a book search using ‘ediscovery’ on amazon.co.uk and got 12 books related to the subject matter. On ‘edisclosure’ I got none. There’re couple of books listed when I used the search term ‘electronic disclosure’ but only one is available on the amazon.co.uk site.

So, the IAAC Second Edition guide is a useful starting point for organisations looking for reliable sources of information on digital investigations and evidence. What’s more it’s free!
Many thanks to the work of the IAAC and to Professor Peter Sommer.