Monthly Archives: February 2012

In the jaws of e-discovery

The Great White Shark which terrorised the fictional seaside resort of Amity in the 1970s was a classic of its time and of its type.

There have been a number of follow up films, none anything like as good as the original because now everyone knows the plot.

Nonetheless this means that I do not need to recite the story for readers to understand what I am talking about. For some weeks now, I have been writing about predictive coding and in particular the court of His Honour Judge Peck in New York. Most recently, Judge Peck has been considering the case of Monique Da Silva Moore, et al v Publicis Groupe and MSL Group.

In my previous piece entitled Predictive Future on 23rd February I referred to the fact that Judge Peck was due to write an opinion on the subject of predictive coding in that case, and he has now promulgated his views. The interpretation of what he said has not been without controversy as can be seen from, for example, an item on that same date in Clearwell’s e-Discovery 2.0 blog,  Judge Peck Issues Order Addressing “Joint Predictive Coding Protocol” in Da Silva Moore eDiscovery Case.

Now, I have always taken the view that no judge will ever endorse a particular provider or a particular technology. The best that can be hoped for is that a court will say that a particular procedure is one to be considered and in the appropriate circumstances one which it may be right to adopt.

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Predictive future

Go away for a few days and when you come back it often takes an inordinate amount of time to catch up with developments. It is always the same and this time is no different.

I left you with thoughts on Va Va Voom (Voom HD Holdings LLC v EchoStar Satellite LLC Index M 1748 and M 1833, 600292/08.) and the prospect of Judge Peck’s opinion in  Monique Da Silva Moore, et al v Publicis Groupe and MSL Group  and come back to find that the blogosphere is buzzing with views on what was actually decided in that case and news of another case on predictive coding in an antitrust matter called Kleen Products LLC v Packaging Corporation of America.

Fortunately I am confident that I can adopt a policy of wait and see here. In Da Silva, the transcript I have seen makes it clear that the parties had agreed to use predictive coding but could not agree what form the predictive coding should take. I hope that Judge Peck’s promised opinion will clarify matters for the parties as well as providing guidance to the rest of us.

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The right to be forgotten (again)

Several weeks ago and just before the EU published its proposals to replace the EU Data Protection Directive 95/46, I wrote, admittedly somewhat tongue in cheek, about what might be contained in the new draft.  [The right to be forgotten, Smart e-Discovery blog, 24th January, 2012]. Since then, the EU has produced its proposals to a chorus of indifference other than from some quarters of the business world who grumbled that it was all going to be more expensive.

In New York, at Legal Tech 2012, only one US lawyer asked me what I thought about the proposals. However switched on the US Legal fraternity may be (and they generally are), they are clearly not goggle-eyed about what is going on in Brussels. Not that I blame them when they have a presidential election coming up with the GOP making all the wrong noises and with the Democrats staying oddly silent on most if not all the issues of the day. I suppose that they assume that their man will win as the incumbent while the challengers tear themselves apart. However unlikely a President Romney or a President Gingrich may seem to us, I find it surprising that President Obama and his team have little to say at this time.

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Blog czar bad for you

As an occasional blogger, it is sometimes interesting to see what other people think of the activity. I say sometimes, because, by its very nature, the activity of blogging attracts all sorts of people and repels many others.

Occasionally, truly excellent comment is made about blogs and the whole ambit of social media and as I trade in these to some extent, I thought I would share with you the views of a witness to the Leveson Inquiry into phone hacking and the press.

The statement of Francis FitzGibbon QC came to my attention via Twitter (and his blog Nothing like The Sun). It contains his views on the ethics of blogging, the possibility of effective regulation of the blogosphere and the simple rules he believes all serious bloggers should adopt. It covers much more in the course of its 40 paragraphs over 10 pages.

Does Mr FitzGibbon think there should be a blog czar? The answer is an emphatic “No”. As Mr FitzGibbon says at paragraph 27 of his statement to the inquiry: Continue reading

Holloway’s needle

A question of trivia: How many needles did Cleopatra have?

The answer, it seems, is four!

If you have been reading my recent posts from New York, you will not be surprised to learn that one of the “needles” is in Central Park. Its partner is on the Embankment in London and they came originally from Heliopolis. How they came to be called Cleopatra’s Needles, I do not know. A blog written by the evocatively named William Wallace under the strapline of London is Cool  has an original take on the reason and reveals that Cleopatra moved them from their original site in Heliopolis to Alexandria where she ordered them to be placed in a temple in honour of Mark Antony. The pair was later split up with one in London and the other in New York. The second pair is equally mysterious. Having been erected originally in Luxor, one is now in the Place de la Concorde in Paris and the whereabouts of its twin is unknown.

A second titbit from New York concerns Predictive Coding, aka Technology Assisted Review or TAR. I attended only two of the many sessions on this subject. One was an emerging technology session moderated by Chris Dale with panel speakers Craig Ball, Certified computer forensic examiner, Attorney and Forensic Technologist, David Cowen, President of the Cowen Group and Stephen Stewart, Chief Technology Officer of Nuix. Continue reading

Predictable outcome

Hot on the heels of Voom comes what is believed to be the first federal case to adopt the use of predictive coding. The case is Monique Da Silva Moore, et al v Publicis Groupe and MSL Group and the decision was yesterday, 13th Feb 2012.

It is not altogether surprising that the judge was His Honour Judge Andrew J Peck of the US District Court for the Southern District of New York, long a proponent of using technology to deal with electronic discovery(as he naturally calls it).  See the analysis by LTN’s technology editor, Sean Doherty: Technology on Trial: Predictive Coding, Law Technology News, 14th Feb, 2012.

I intend to comment further on this case in due course as protocols are to be agreed by February 17th, following which Judge Peck is expected to write an opinion.

Watch this space!

Mind the gap!

It is easy to overlook the fact that London is a very green city. It is a fact! Fly over it and you will see what I mean. Consider Highbury Fields to Victoria Park, from Greenwich to Crystal Palace and Richmond taking in Hyde Park and St James’s Park; there are few cities with more greenery. Add to all that, the tree lined streets and the myriad of smaller parks and open spaces and you have not so much a green tinge but a veritable green covering.

London is fortunate in this regard as are the people who live and work here. By contrast, I am struck by the relative lack of green spaces in New York. Before anyone takes me to task, let me say that I have a great fondness for Central Park. I have no idea who originally thought it would be a good idea to leave a vast open space in the middle of Manhattan, still less what its real estate value would be if it were ever to be developed. But what a courageous and fortunate decision it was!

The green lung in New York on a cold bright sunny day in winter is hard to beat. Every time I visit I am struck by something I have previously missed. Last week, thankfully free of the snow which plagued us all last year at Legal Tech, it was possible to spend time on Sunday walking in the park in shirt sleeves. The magnificent American elms (how I miss our English elms!), the red squirrels, sadly long gone from all but the most remote parts of the British Isles and grand statues of such as Robert Burns, Hans Christian Andersen and even William Shakespeare, make the park a wonderful place to stroll and the Boathouse a good place to stop for refreshment.

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Va va Voom

You will have to be at least 25 years old, I suspect, to remember a remarkably successful TV advertising campaign in the Nineties to promote the Renault Clio. Between 1991 and 1998, the series featured a father and daughter, Papa and Nicole, (with two other walk on parts) and apparently recreated the exchanges between Nicole Bonnet played by Audrey Hepburn and Hugh Griffiths who played her father in the 1966 film How to Steal a Million. Surveys claimed that the Papa!-Nicole! exchanges made Renault the most persuasive advertiser at the time.

Apart from the immensely pretty Estelle Skornik who played Nicole, the series is astonishing in that, over its seven years, only five words were ever spoken: Papa, Nicole, Maman, Bob and Yes! But if this does not ring a bell and/or you are football crazy you may remember (although you may have to be an Arsenal fan!) that Thierry Henry was engaged to advertise the Clio in the Noughties, giving it added Va-Va-Voom.

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