So a quick post on what’s new in the Data scene. Check out the ICC’s site on news coming from the European Commission on changes to the Standard Contractual Clauses.

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?

Data is contagious and any attempt to categorise or organise ‘data’ may please someone and/or upset someone somewhere from the legal to IT to the end user. All things digital makes life interesting and/or complicated and I can safely say ediscovery/edisclosure is no different. So I will just say ‘all things e-‘ for ediscovery/edisclosure related stuff from protocols, guidelines, standards, process, models, framework etc. With ‘all things e-‘ coming from the various bodies and institutions, the following list is just a starting point for further add-ons.

~Guidelines ~
The International Center for Dispute Resolution (ICDR) published ‘Guidelines For Arbitrators Concerning Exchanges of Information’ available in pdf. An extract from the Guidelines “The purpose of these guidelines is to make it clear to arbitrators that they have the authority, the responsibility and, in certain jurisdictions, the mandatory duty to manage arbitration proceedings so as to achieve the goal of providing a simpler, less expensive, and more expeditious process. Unless the parties agree otherwise in writing, these guidelines will become effective in all international cases administered by the ICDR commenced after May 31, 2008, and may be adopted at the discretion of the tribunal in pending cases. They will be reflected in amendments incorporated into the next revision of the International Arbitration Rules. They may be adopted in arbitration clauses or by agreement at any time in any other arbitration administered by the AAA.”

The Chartered Institute of Arbitrators (CIArb) published ‘Protocol for E-disclosure in Arbitration’ again available in pdf. The protocols covered every possible steps including “The Tribunal may, after discussion with the parties, obtain technical guidance on e-disclosure issues” (Paragraph 5 (13). Seems that there are ‘e-disclosure issues’ that are not covered by the Protocol. Well it is a Protocol and not a detailed list of e-disclosure issues. So I’m rather surprised to read in Paragraph 7, which states “The primary source of disclosure of electronic documents should be reasonably accessible data; namely, active data, near-line data or offline data on disks”. This categorising of data can be confusing especially as nowadays other expressions are also used to denote the ‘state’ of the data e.g. data-in-motion, data-at-rest, data-in-use. The state and storage of the data should not be confused when stating the ‘primary source of disclosure…’ .What happens if the active data is stored in ‘archives’ and with changes in technology, these ‘archives’ will be reasonably accessible? This is already taking shape in MoReq2.
The Protocol strives to be comprehensive and cautious with the declaration that “The Protocol is for use in those cases (not all) in which potentially disclosable documents are in electronic form and in which the time and cost for giving disclosure may be an issue”.

The following are some ‘nuts and bolts’ from various UK/European industry bodies.

~Standards~

On the BSI website the BS 10008 Legal admissibility and evidential weight of information stored electronically is available to purchase. I reported on this here.

Under the auspices of The Document Lifecycle Management (DLM) Forum and its Model Requirements for the Management of Electronic Records (MoReq) Working Group, MoReq2 is now out. For further details check out at The AIIM. MoReq2 is also driven at the EU level and may become a pan-European standard (although it’s a model/framework with standard for testing the model).
Stock, an EU co-funded project, is a framework for European electronic ID interoperability. According to the blurbs published on the website, Stock aims at implementing an EU wide interoperable system for recognition of eID and authentication that will enable businesses, citizens and government employees to use their national electronic identities in any Member State.

I came across a ARMA Baltimore, 2007 which gives a list of standards etc.

To be continued…

I do not know why the ICC specifically use the term ‘Production’. Why not just a Task Force for electronic disclosure or electronic documents?

I fear that by having a Task Force for ‘Production of electronic documents’ and with a mandate specifying two streams (i.e. disclosure and production) signal the potential to focus on disclosure and production with the outcome to report on ‘production of electronic documents’.

The ICC has great world class reports and publications and also a great institution in many ways.

I do hope this new Task Force will break convention and not just focus on the production aspects of e-disclosure.

According to Prof. Tony Hoare at a BCS evening talk, the collusion of the Science of Programming with the Engineering of Software provides interesting areas for research in domain modelling and ontology related subject areas (e.g. ontology languages).

Maybe one day there will be a ‘perfect domain model’ to represent our ‘real world’ with unbounded boundaries and constraints. Until that day…the present reality is that there are hosts of all kinds of information sets to talk about and write about.

If one can create a ‘wall on collusion’ of all existing laws and regulations on data and information, what would it look like?
Daniel J. Langin, Attorney at Law LLC provided a sample just on e-mails, A Guide to Keeping E-mail Legal: Four Pillars of Compliance‘.

The mock arbitration was well organised with two sittings comprising of well known arbitrators, lawyers and also a barrister. Only one of the parties was not a lawyer. The participants were mostly from law firms from various European cities.

The mock arbitration was conducted in English and French and the ‘fictitious’ case involved an English Software consulting firm (the Claimant) and a Greek Banking corporation (the Defendant number 1). The claim against the Greek Bank’s majority share owner, a German Bank (the Defendant number 2) was dismissed by the panel in the first hearing.

Besides dismissal of the 3^rd party claim, the tribunal comprising of two French arbitrators (including the chairman) and a Swiss lady arbitrator also dismissed the claimant’s request ( an English Lawyer) for discovery of ‘e-mail diary’.

A mock case no doubt but a ‘real’ cultural show of who wants discovery and who objects to discovery. How interesting!

Traditional documentary discovery is ‘turned’ into electronic discovery by allowing data analysis of computer files to ‘create new document’.

Check out this at the Irish law on discovery

A decent textbook of legal principles (mainly common law jurisdictions) and a fair selection of chapters/articles on digital evidence.