August 10, 2009 – 6:19 pm
Over the past couple of weeks I have been busy sorting out my physical garbage and planning for my impending move to Beijing. No way near complete yet!
I just opened an invitation e-mail and the word – e-Garbage struck a loud chord! Imagine how much e-Garbage I will add to the universe of ‘e-something’ if I could just do a ‘click’ on my physical garbage and turn them into e-Garbage?! Thank goodness I can still have my teddy bear.
The invitation e-mail was for CYBERLAWS 2010 | Call for Papers – ‘The First International Conference on Technical and Legal Aspects of the e-Society’.
Hello friends,
Eventually I hope to upgrade this wordpress site to the ‘latest’ version.
Meanwhile, I will only allow ‘real’ users (as opposed to spooky/spamming e-mails) to register here. Please do announce via e-mail to me that you wish to join/register with an identifiable e-mail address.
Many thanks!
Cher
Done in Brussels, 10 July 2009. The new EU programme for the next five years in the area of freedom, security and justice – the so called Stockholm programme, is due to be adopted by the European Council in December 2009 is available at the EDPS site.
…
It has been unusually hot in (South) London. Not sunbathing and not complaining about the weather but a different kind of complaint.
I was stranded for nearly one and half hour in a no power train yesterday and couldn’t help hearing several angry and frustrated mobile exchanges between couple of businessmen with the South East HQ customer services. The angry exchanges were mainly triggered because there were no communications (appeared to be no guard on the train either!) to the passengers on what was happening. The lack of visible actions on the train and the lack of reassurance from the HQ certainly did not help to calm the nerves of the passengers in a hot, broken down train in busy Waterloo tracks.
Is it difficult to relay basic information to passengers (who are entitled to be informed) the behind the scenes activities between the train driver, the engineers and HQ? I guess ‘the need to know’ (or walkabout alerting services?) by/to the passengers is not high on the HQ customer services list. No wonder train fares increases every year to pay for ‘unnecessary or avoidable’ situations – just a thought – but a rather annoying thought when one missed several business appointments!
In this age of ‘speedy and accessible’ communication (mobile connectivity etc.), customer’s expectation and fulfilment still pose challenges.
Is it also the same in the ediscovery/edisclosure world? I hazard a guess – a doubtless assertion (with the assumption that access to power/data is obtainable) – that the behind the scenes activities between the technical folks and legal and management team are exchanged too late to avoid aggros and costs. (Hence early confer/meet if this is available to parties).
In ediscovery/edisclosure, one of the behind the scene and less talk about (or blogged or written about) is evidence. This is highlighted by the use of generic term such as ‘information exchange’ in international disputes. The ‘e-words’ including ‘evidence’ are potentially culturally sensitive to use. Imagine having to describe the ‘e-evidence’ to all parties without getting cross-wired or inflicting cross-eyed to reviewers?!
For me, the term and usage of evidence in the context of international disputes requires behind the scenes re-assessment to make sense to me when dealing with ediscovery/edisclosure.
I guess evidence is also being re-assessed by folks in Asia. The ADR in Asia Conference 2009 in Hong Kong on 15th September has a topic: Interim Measures and Evidence – Emerging practices and movements.
Will e-disclosure surface under this topic?
I certainly would love to hear from folks who will be attending the Conference in Hong Kong this September. I will be in Peking University and may not be able to do the trip.
Enjoy!
At what price is ‘Access To Justice’? Taming e-disclosure via costs management by the court?
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.
Personally, if I can get my ISP (the data controller) to read (& acknowledge) the newly launched ‘Personal Data Guardianship Code’, I will have achieved a milestone. I have had two broadband internet disconnections (in April and this June), each disconnection requiring a re-connection which takes 3-4 wks. I have studied Data Protection Law (as part of an LLM programme) and am currently reviewing articles touching on privacy and data protection. Yet I am powerless when it comes to data (account) outside my reach.
Perhaps with the concept of data controller and data subject and with data swishing and swirling in all places, we can’t figure out who owns the data. Note the question on the ownership of data which I twittered :’The ethics of privacy - a new label for not owning or not responsible for the data?’
Dealing with data and talking about data seems rather bland, so let’s label it with culture to bring data to life, so that’s what the British Computer Society (BCS), in partnership with the Information Security Awareness Forum (ISAF) founded by the ISSA-UK, has launched the Personal Data Guardianship Code in an effort to change the culture of organisations towards the handling of personal data. (as announced on the BCS website).
The Personal Data Guardianship Code (Personal Highway Code) is available for download at the BCS website.
For my ISP, please read this one liner even if you can’t follow the DPA or the Personal Highway Code:
Every organisation which handles personal data should have in place specific rules and procedures that protect the rights of data subjects.
Amen !
Recently, I was at two events (ADR related) and both required me to note my carbon footprint.
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…
