In arbitration, inaccessible data is data to be discovered and produced as shown in the Cassondra Todd v Guidance Software case. There’re several reports on this case which you can search via google. This report (also tweeted) gives a best guess of the timeline of the events, which I find handy to scan, read and make my own analysis.
What are your views on the arbitrator’s order for disclosure of data residing on backup tapes?
This is a spontaneous blog!
I just counted the number of registered users here and click2ediscovery now has a dozen users. With all the jazz and ding-dong (this phrase just sprang to mind !) on ediscovery related stuff, how come no news from the alternative dispute resolution world on edisclosure.
On my radar screen, an ediscovery vendor was recently in the news. I don’t seem able to re-discover/retrieve the news! It’s about a vendor failing to perform or meet ediscovery requirements within their own organisation.
Notice the ‘My Tweets’ on this site? I will be tweeting on the ‘jazz and ding-dong’ on ediscovery coming from various quarters that appears on my radar screen. Will blog when I get to sit down and not jazzing around.
Do join in the jazz and ding-dong or follow edisclosure. More fun than joining another forum or group don’t you agree?
I’ve kind of recovered from my jet lag. I was in Asia for Chinese New Year and also managed to squeeze in short trips to Thailand and Cambodia (to see the Angkor Wat). Posted some pics (taken using my mobile phone!) at facebook.
Mmm even did not get to twitter while in Asia. Oh I’ve now got an edisclosure twitter (do follow edisclosure) and also on YouTube. I did find some time to produce a short snappy video for the LegalTechTownHall Questions. My two cents (or pennies) worth video is here.
Maybe one day I will be able to freely tweet and post videos from my mobile phone. Super freely, smarty tweety mobile next?
Here’s a blog-worthy report with the headline: Twitter lands congressman in hot water’. Hot water also for the Pentagon as it is reported to be looking to review its policy regarding the dissemination of potentially sensitive information in the light of new technologies. On the other hand, Twitter gets more funding even without a business model. How about that for the global credit crunch and the bankers!
Will people tweet more and more and blog less and less? Mmm maybe the 78 rpm record player will make a come back too.
On the subject of blogging, arbitrators are now blogging but not using their own blog site but via/under a well know publisher site. Doesn’t sound like blogging to me, still they’re ‘blogs’ and not posted as articles. I’ve not read the ‘blogs’ but have scanned for edisclosure ‘blogs’. Nothing there. I will keep track of the’ blogs’ at Kluwerarbitrationblog.
Two rather blog-worthy news for me came from two sources, one is a book and another is from a lawyer. The book title caught my attention, not the content. The title read: You Can Lead an Atheist to Evidence, But You Can’t Make Him Think: Answers to Questions from Angry Skeptics (the book is by Ray Comfort ). Isn’t that title something to ponder! I certainly need to think just to read that title!
Less thinking more a creative spark or ingenuity (who knows?!), a certain lawyer certainly knows how to do marketing with a title ‘ RentAJudge ‘. The trade mark site is at rentajudge
The formula for marketing seems to be ‘credit crunch’ + ‘costs’ + ‘ediscovery’ = alternative to alternative dispute resolution (with the exception = no choice litigation).
Well even the ICC is offering training on Amicable Dispute Resolution!
Oh well…
Just couple of days ago, one of my twins asked: ‘Mummy what is your New Year Resolution’? I said: ‘Oh! I don’t know except I need to get rid of my old TV and cancel my TV licence’.
When I said ‘old’ it’s over 20+ years aged Sony TV. Still working fine except the remote sensor is not working. Anyhow I cancelled my TV licence yesterday via e-mail and wasn’t too sure what I need to do to ‘disconnect’ my set. Phew! I am glad it’s a simple disconnect of cables from my set (to ‘show’ that I won’t be using my TV for recording or receiving programmes). Amazing…it’s not something I imagine doing i.e. disconnecting my TV…sounds rather weird in this age of gadgets and the likes.
Maybe soon the ‘TV’ set (like my ‘old’ TV) will be revamped or re-classified to be something else to cater for the ‘digital TV’. Will TV still be ‘TV’ and not ‘HD TV or digital TV or something TV’?
Classification sounds easy but is it?
In ediscovery/edisclosure, searching for ESI assumes that the data has a hook or a ‘name’ or being indexed or classified to denote the nature of the ‘data’. As the nature of ‘data’ changes and also the storage of it or the gadgets that hold it changes, classification requires far more imagination than simply throwing out the ‘old’ ( like me cancelling my TV licence via e-mail. Oh! the physical cancellation paper to follow 
).
Beyond my TV room, apparently there’s an ongoing trade dispute due to ‘old’ or outdated Informational Technology Agreement (ITA) whereby the ITA is obsolete due to problems with classification of new multifunctional digital devices (like the new digital TV). For old and still relevant news, do check out the report at egov. A pretty long winded article to report on a problem with classification of digital devices, not easy eh?
Will classification of data or ESI become a matter of dispute in the ediscovery space? So far, from the list supplied by Kroll Ontrack Inc. in their ‘Year In Review’ report (the US ediscovery landscape), classification issue is not on their top charts (yet).
I suspect the majority of blog readers/subscribers are aware that the platforms in the clouds such as facebook (e.g. the landmark case in Australia) and twitter (big companies using this to connect and tweet with their customers) are sources of ESI. As mobile technology gets more integrated with these clouds of information the ‘Future Year in Review’ list (like the list compiled by Kroll Ontrack Inc.) will not just be ‘process-oriented’ but also ‘platform-oriented’ or rather infrastructure related. No doubt the question of classification will emerge with the discoverable or reasonably accessible issues like the disputes around the obsolete ITA. It will be tweets against search criteria or algorithm. Now the 140 characters tweets or twitters are surely more accessible than the zillion of e-mails, right? Well…like I say classification sounds easy…
I will invade the twitter dome this year for some fun.
It’s that time of year again…December festive spirit and the e-mails exchanges.
In keeping with the spirit of goodwill & fun, here’s a challenge of a different sort from a cartoonist, Tom Fishburne at Case in Point.
Do visit the site for the cartoon on E-Discovery Budgeting. The site’s invitation starts off:
About ‘Case in Point’ – ‘Case in Point’ is a weekly cartoon series, created by CaseCentral Corporation, that illustrates the lighter side of eDiscovery. ‘Case in Point’ also runs a contest inviting anyone from the expansive eDiscovery realm – lawyers, IT staff, judges, service providers, paralegals, writers and consultants – to submit their own humorous experience or a scenario they find particularly funny. Participants may submit cartoon ideas online at http://www.casecentral.com/caseinpoint/idea for consideration. Winners will see their idea turned into a cartoon and receive a $50 gift certificate.
Come on all you ediscovery bloggers! Test your case…
Checkout Ralph’s blog on Why E-Discovery is Ruining Litigation in America and What Can Be Done About It
In the world of IT and wearing my project manager hat on, ediscovery/edisclosure is another ‘activity’ to add to the list of items to consider. In the past (before ediscovery/edisclosure is coined) and in projects I have been involved in, I will do ‘cultural sensitivity’ sensing and ‘who is who’ and ‘who knows what or their role etc’ (the word coined is stakeholder analysis). I have held workshops (e.g. internet banking projects) whereby lawyers were invited as ‘key stakeholders’ and IT people were doing ‘who knows what’. Guess what were the outcomes? Lawyers may know a lot but they generally don’t want to reveal or share ‘openly’ in a workshop. If they do reveal or share, there will be more meetings with several paper memo type exchanges.
What can be done to improve collaboration between lawyers and IT people? Before attempting collaboration, both teams need to sense ‘who is who’ (not only the IT people) and whether they can deal with whatever the outcomes and learn to accept whatever the consequences. (fear of being open?) I don’t know any rule books or processes to do this. It’s beyond reckoning… Like some people just can’t ride a bike no matter how many books they have read or seen. This is just my sudden reckoning!
I like the word, protodigital. I would like it better if this word can be a mantra for lawyers and IT folks to get to know ‘who is who’ to reach to ‘who knows what’.
The Data Protection Act was given a new ‘shine’ in the name of new laws on data sharing. Check out at the Ministry of Justice website Information Commissioner to be given tougher powers’.
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.
This posting is to test whether the move of my blog to another server is completed and working as ‘per normal’ or as expected.
For general resources related to Alternative Dispute Resolution, do check out at my networking iADRt site. Do please join iADRt. You may join as a guest of iADRt or better still become a sponsor and get your company name/logo on the iADRt site.
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’ve just re-read the conclusion in my research paper published here.
In the litigation arena, I have found that there are many more blogs on various aspects of ediscovery coming from the US and still hardly any blogs from elsewhere. Worldwide searching/linking is still lopsided when it comes to online knowledge and information distribution. Perhaps the very concept of knowledge or data or information divides the technology ‘haves and haves not’. For a survey of the ‘haves’ check out what others have compiled at Guide to E-Discovery Resources on the Web.
In my conclusion I stated ‘Whether the benchmarks set by the Sedona Principles will further be incorporated into IBA Rules or modified by the various international organisations such as the ICC, LCIA, IBA, UNCITRAL and the American Arbitration Association, to meet the expectations of the international businesses will be an event worth earmarking.‘.
With the lopsided information world and even with search engines allowing me to specify whatever I want to seach, I have to say there is so far no such event worth earmarking. Instead, these organisations have gone their own separate ways and with others (e.g. CIArb) joining in the bandwagon to come up with protocols/standards/models etc. So…expect more to come.
It’s nearly a year since I wrote my conclusion and this year I have attended most of the momentous ediscovery/edisclosure events hosted in the UK. One notable observation in all the events I’ve attended is that the international arbitration arena is also lopsided in that the participants are invited by the organisers’ arrangement/selection of the topics/themes. Hence the participants are driven by the (commercially driven) organisers’ goals instead of a truly opening forum for a wider participation by the end users or people/businesses who are the primary ‘stick’ when it comes to ediscovery/edisclosure related matters. Personally, I find the ‘carrot & stick’ (this idiom or expression conveys the way I feel about these seminars/events) approach rather limiting especially in areas whereby technology, law and other social sciences are involved i.e. like in ediscovery/edisclosure. Heh! I’m not blaming the organisers, in fact without them the ‘ediscovery’ industry will be less exciting (as I will have less to compare and contrast!).
I’m sure in due course there will be open forum(s) on ediscovery/edisclosure whereby there will be protocols/guidelines/procedures/standards etc designed/developed with participation from the wider businesses/communities rather than a select few or lone individual. I guess with the nature of the international arbitration arena whereby not a lot of cases are widely publicised, the ‘one size fits all’ stuff for edisclosure will remain elusive and challenging.