Monthly Archives: November 2009


Legal Week of 12th November published an article by Craig Earnshaw and Nick Athanasi of FTI Consulting entitled E-discovery Demystified

The authors asked whether e-discovery technology was too far out of their comfort zones for lawyers despite its potential to save time money and effort. They set out to demonstrate that the process of electronic document collection and review need not be cumbersome, time-consuming nor a technical minefield.

I know Craig of old and know he has a huge amount of experience of document collection, electronic document management and handling contentious cases. I do not in any way seek to disagree with what he says but would like to add a few comments:

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Confucius, he say…

“May you live in interesting times” is reputedly the English version or paraphrase of an ancient Chinese curse.

Whatever its origin, the saying crops up in a variety of differing situations including a speech by Robert F Kennedy in 1966, a letter from Austen Chamberlain to a member of the US House of Representatives and more recently in a speech by Bob Garvin, the character played by Donald Sutherland in the 1994 film, Disclosure.

The film starred Demi Moore and Michael Douglas who, contrary to what you might expect from the title, were not engaged in a Hollywood version of Part 31 but played a couple who worked in a technology company and who became engrossed in a sexual harassment case!!

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Mirror, mirror on the wall

5 weeks to go until Christmas!

Having eschewed anything even faintly redolent of Christmas for the last two months since I saw the first Christmas decorations appear, I am bound to concede that with only a few days to go until the start of Advent, I am going to have to start to think about Christmas.

This blog is intended to take a partly serious and partly light hearted look at the world of e-Discovery. We are entering the season of end of year reviews, predictions for the New Year and pantomimes.

Before long, commentators from all walks of life will be filling column inches with clever ideas about 2010 and patting themselves on the back for all the predictions for 2009 they got right while conveniently forgetting the ones they got wrong!

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How green is my litigation?

Environmental awareness has been in vogue for some years but it appears to have had little impact on the consciousness of litigation practitioners. Could it be that the all-pervasive fascination with green issues, sustainability and the carbon footprint has no relevance to lawyers in the litigation process?

Environmental lawyers may well be familiar with green issues such as removing F-gases from the environment, the planning process for eco-stores and the tax breaks and incentives to landowners in relation to wind farms, but what can contentious lawyers add to the mix?

The answer is blindingly obvious —

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UK firms falling short on EDI discovery readiness

The 3rd Annual Electronically Stored Information (ESI) Trends Report by Kroll Ontrack reveals that there is a significant gap between the existence of corporate document retention policies and ESI discovery readiness strategies.

According to the Kroll Ontrack news release, ESI management is top of mind for corporations but effective implementation is falling.

This year’s survey also reveals 77% of US companies and 56% of U.K. companies believe their ESI discovery policy or strategy is repeatable and defensible. However, only 57% of US and 39% of UK corporations have a mechanism to preserve potentially relevant data when litigation or a regulatory investigation is anticipated.

“Without an identified means to suspend the expulsion of potentially responsive data, many companies are not positioned to execute proper preservation protocol or claim their ESI discovery readiness policy is effective,” says the report.

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Scottish Civil Courts Review

I missed the publication of the Report of the Scottish Civil Courts Review when it was launched on 30th September 2009 by the Lord Justice Clerk, the Rt Hon Lord Gill. The report is in two volumes and contains 15 chapters and a synopsis.

The terms of reference are:

To review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to

  • the cost of litigation to parties and to the public purse;
  • the role of mediation and other methods of dispute resolution in relation to court process;
  • the development of modern methods of communication and case management; and
  • the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts;

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Ministry of Truth

When I used to travel on business particularly in the countries of Latin America I used to enjoy the very real differences in the way lawyers worked and the institutions in which they operated.

There are, of course, obvious differences between the way of life I was used to in the UK and in Continental Europe and what lies below the Panama Canal. In particular I remember the disparity between what you leave behind at Miami airport and the reality of life in the outskirts of Caracas as you drive up the canyon from the airport to the city centre.

However, this is not meant to be a social commentary, you will be relieved to know. No, my point is a simple one. My purpose is to highlight certain developments during my practicing life which I strongly suspect have not been for the best.

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Funder bolt and lightning

Less than half the funds sought by putative litigation funder Burford Capital were subscribed last month as the London market’s second biggest listing of the year flopped.

Only £80 million was provided by investors in the IPO on the AIM market. Burford had sought £200 million.

The company needed the money to fund commercial disputes in the US. While £80 million is a sizeable sum, Burford will not be able to fund many pieces of litigation in the US with it especially if they have a high threshold below which they will not contemplate lending.

I am a fan of litigation funding in the right circumstances and I hope that this lack of interest on the part of investors does not presage a more general malaise in the market for funds to support litigation. The fear must be that, when coupled with the outcome of the House of Lords case in July involving Stone & Rolls and Moore Stephens (see Third party funding and the credit crunch, 15th Sept.), we may be seeing the start of an increasing reluctance by the financial markets and private investors to become involved in this type of venture — which I think would be a shame.

Have photocopier, will travel

What are we coming to?

Apparently, a recent case against five men accused of starting a brawl and charged with affray was dropped last week because the CPS did not manage to complete the photocopying in time.

Six months, yes six, after the charges were brought, the CPS had not got the paperwork in order because, it was said, that “the person responsible for photocopying had been off work for an operation”.

The magistrates quite rightly said that this excuse was “not acceptable”.

I imagine the costs thrown away and the police and court time wasted will be substantial.

Should the CPS continue to experience difficulty getting its photocopying done on time or at all, I will be happy to take their call and point them in an appropriate direction!