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.

Preservation orders and the rules on Electronically Stored Information (ESI) are complex areas for policy makers and also IT folks. Some of these issues I have raised in my article and also briefly during my talk at BCS in November 2011. Both these are available on this page.

Personally I find the term, ESI a confusing term in the context of electronic discovery/disclosure (edisc). In edisc it is not only the digital/electronic information in storage that the rules/laws are addressing. The word ‘stored’ implies storage media/medium/devices and the data in storage is ‘at rest’. Hard to imagine that emails are ESI. In my talk I stated that edisc folks tend to address edisc by talking about discoverable media/medium/devices which is not the case in edisc. So now the proposed FRCP is addressing ‘discoverable information’ instead of just ESI.

The ‘Electronic_discovery has been viewed 5883 times in the last 30 days.’, ‘Information_privacy has been viewed 4148 times in the last 30 days.’, ‘Information_security has been viewed 30227 times in the last 30 days.’ and ‘Surveillance has been viewed 19571 times in the last 30 days’. Most interestingly this ‘Edward_Snowden has been viewed 341274 times in the last 30 days’

The figures may not show exactly how many searches on ‘surveillance’ or ‘surveil’ but the wikipedia figures give a good enough guide for me to denote ‘surveillance’ as a keyword to take note.

I came across this article ‘Ford “Know[s] Everyone Who Breaks the Law” Using Cars They Made — Why Aren’t They Doing Something About It?‘. It is worth reading even though it is from a US perspective. Well, the Edward Snowden drama originated from the US but has news flashes across the Globe from the US to Hong Kong to Brazil to Russia and UK/Europe.

As highlighted in the volokm.com article, the term ‘surveil’ is now a legal watch word in the US.
Extracted statements from the article :
Failure to provide camera surveillance is now a common claim in negligence cases. “Take reasonable care” translates into a steady and growing pressure: investigate, surveil, disclose.

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

What has been stated is that the review process is the most expansive aspect of edisc (i.e. expansive labor and time and voluminous document). So much so that predictive coding is now not only a tool used for the review process but also has become a topic of its own in the US courts. Is the review process also the most difficult of the edisc process? If you answer ‘yes’ or ‘no’, why do we need predictive coding?
Perhaps some answers (hopefully with relevant questions raised too) will appear in the new book Predictive Coding for Dummies book.

I wonder why there are no Dummies or Idiot’s Guide to the review process, instead one on predictive coding. I guess it is easier to write about a piece of tool/technique and not too easy to write on the review process or not profitable enough to do so.

P.S.
This post is reposted (due to corruption in database) after my return from Asia.
All comments submitted before this reposting are now lost.

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.

One (possible) answer – the devil is in the detail, and assuming that is – one can get hold of the detail.

I wonder whether one can determine ‘the fairest and lawfully’ when one do get hold of the detail. If you’re looking for the detail, then you have used the incorrect word ‘hold’. Well in Singaporean term…

Last October, I attended the e-Discovery Exchange Platform, an event organised by innoXcell, in Singapore (as I was out in that part of the world). I enjoyed a very different ediscovery conference/event.

Singapore, the Lion City, itself needs no introduction, what needs to be said is that when in Singapore do what the Singaporeans do or don’t do. My first encounter was in the MRT (the tube/metro) station. I have heard about the ‘no chewing gum’ stuff but not about the ‘no food/eating/drinking’ in station platform and train. Being blinded by the heat and travel exhaustion I naturally drank a bottle of water while waiting in the platform. This natural action could have set me back S$200 or more! I was lucky I wasn’t caught, so I was told. I also found out that chewing gum is permissible and not an offending action to chew gums. So better chew gums than drink water in trains and platforms in Singapore!

How does this translate into ediscovery setting in Singapore? I have to admit I turned up at the e-Discovery Exchange Platform event unprepared as I joined at the very last minute and only for one day. No matter, I did have some fun and met some interesting folks and had great exchanges. One exchange which I want to remember – is that the term ‘litigation hold’ is not in the Singaporean ediscovery vocabulary. Like don’t assume chewing gum is not OK. For ediscovery to take hold in clean and organised Singapore – use ‘lock down’ and do not aim to ‘get hold’ of the detail (like in the American sense of performing ediscovery). Are the Singaporeans taking hold of ‘creative ediscovery’ (fairest and lawfully?) to the next level ( i.e. like in their city planning or planned city), by having options available (opt-in framework) for dealing with matters involving discovery?

I also heard (during the coffee exchanges) that ediscovery is discovery. My guess is that technical drama in ediscovery is nothing to brag about in Singapore. For the creative Practice Direction, check out for the devil in the detail in the Practice Direction No.3 of 2009.

A Singaporean lawyer also kindly gave me an interesting case report (that challenges the PD right to the detail) to read which I won’t bore you with the detailed analysis.

Mmm.. This blog is posted in UK, dated 2nd February – end of a lunar calendar.  From 3rd February the lunar calendar falls under the rule of the White/Metal Rabbit. I wonder what the Rabbit brings…

Wishing all my Chinese friends and readers a ‘Very Happy and Prosperous New Year’ !

Oh! I just saw me in the front page of the video! (which I just found at the innoXcell event site). A nice way to close this blog.
Thanks!

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.