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.

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.

Mmm… I guess the specialist will also read it, perhaps more drawn to the ‘multi-million dollar’ problem. There are still IT folks, even IT security folks (from my own recent exposure at a recent gathering) who are not aware of ediscovery and they are ‘specialist’ in their own fields and in terms of ediscovery they are amongst the ‘masses’.

From another fellow traveller to others, I feel that the ediscovery space has been over-sold or over-rated or even over-exaggerated by (ediscovery) specialists on the few multi-million dollar cases. What about those cases where ediscovery were also ‘the issue’? For me, I certainly would relish more facts or stories from cases whereby ediscovery is a ‘non-issue’. These stories may not be ‘hot hot’ for the press or the masses but from a problem solving angle, it may reveal stuff which even the specialist have not thought about.

For me, ediscovery is about solving problems or involve problem solving. Even in simple problem, there will be questions and answers. So even if ediscovery is a ‘non-issue’ (a simple problem?) what is/are the problem(s), questions and answers?

I guess asking questions or more constructively, knowing what questions to ask and who is/are around or available to ask are ‘issues’ in ediscovery. Hence, I like the post by Dave Healey, with lots of questions.

Finally, put someone you trust, who is diligent, and who is on the case, in charge of eDiscovery, and task them to actively monitor the process on a daily basis!

Who? – another issue in ediscovery!

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

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

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.

I wish I can trace my friends and ex-colleagues in Zurich so that we can re-visit and re-craft the tales in the light of recent changes in banking secrecy in Switzerland. According to the recent BBC news: “The Swiss government confirmed that in line with OECD rules, it would now respond to overseas requests for information in cases of suspected tax evasion, and not just tax fraud”. Indeed the secrets are getting out and perhaps the gold vaults will also soon be opened for inspection, if my friends’ stories are indeed real.

I love stories especially when they stretches my imagination or lack of imagination (shock, surprises?!) and touches on my real life experiences. Well..Imaging walking above gold vaults just underneath your feet and at the same time being harassed by youngsters begging for money or small change. ‘Are They A Changing’ too in this non-secretive age or rather in this age of no more small changes in times of depression? I do hope so…

I just opened an e-mail alerting me on ‘10 Steps to Manage E-Discovery Projects’. Ah! Something just don’t change ; more steps and guidelines and this time instructing (‘like it or not’ ?!) lawyers to become project managers. Now that is a mighty call.

Having glanced the 10 Steps, I have only one observation (with lots of other reasons which I will not list here as they’re my secrets) that is – Project managers are not ruled by 10 steps activities nor can the ediscovery activities be codified into neat steps.

Imagine (now this is not lack of imagination) a lawyer (with all due respect) having to obey the code of ethics and work product or privileges stuff and then ‘like it or not’ being called to act as a project manager. Performing and/or switching role does not mean roles and responsibilities are clear or executable. In fact the multi-roles may create more mayhem when what one needs in ediscovery are clear roles and responsibilities. Also, imagine what the IT department will think of the Legal department?! Conflict all round I should think.

So I thank Bob Dylan for the imagination to ‘get real’ (lawyer acting as lawyer and project manager?!) and at the same time to imagine the impossible possible (like the change in banking secrecy).

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?