Monthly Archives: March 2012

United we stand, united we fall

While discovering interesting facts such as the fact that the state motto of the American State of Kentucky is “United we stand, Divided we fall” it is inevitable that in a blog of this type we miss an article, a development or something of general interest……and it has happened again!

Millnet is pleased to be associated with Chris Dale’s e-Disclosure Information Project and it is to one of his posts which I turn as I missed the case of Patel v Unite the Union.

In the course of an action for defamation in respect of comments posted on an internet forum owned and operated by the Unite union, but where the union claimed that the forum had been deleted and it could not identify those who had made the postings, Mr Patel persuaded His Honour Judge Richard Parkes QC, sitting as a Judge of the High Court, to grant an order against the union requiring it to make a reasonable search for information and to serve a witness statement.

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Cure for the common scold

There is a sign on Fye Bridge in Norwich which claims to be the site of a “cucking stool.”

Norfolk is now my home, not least because I have lived there for longer than anywhere else. I used to practise in Norwich which is full of odd little nooks and crannies revealing its illustrious past as the second city of the kingdom in the Middle Ages, after London.

Cucking stools or more obviously ducking stools were used to punish common scolds.

Apparently, only women could be guilty of the offence, which in broad terms, consisted of being a public nuisance through such activities as habitual quarrelling with neighbours. The Latin tag, communis rixatrix, confirms that only females could be scolds: think testatrix or executrix!

The offence was punishable by ducking or being placed in a chair and submerged in water for however many times the sentence decreed.

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Predicting a green future

The last few weeks in the e-disclosure blogosphere have been dominated by news of and reactions to the various pronouncements in the US on predictive coding.

Led by Judge Peck, we have become used to almost daily updates in relation to the Da Silva Moore case  where we currently have something of an impasse as the Plaintiffs have been given leave by Judge Carter to appeal aspects of the Peck decision. Time will tell whether they are successful and whether this advances their case let alone making it easier for practitioners to feel more comfortable with the concept of Easy Button Review as it was recently described.

In the circumstances, it may prove to be sensible to defer further comment until we know the outcome of the appeal. I am also looking forward to the decision of US Magistrate Judge Nan Nolan of the US District Court for the Northern District of Illinois in the case of Kleen Products LLC v Packaging Corporation of America, where the plaintiffs are asking the court to order the defendants to use predictive coding or as they called it, using yet another name for basically the same thing, content based advanced analytics or CBAA. The outcome of that case will be fascinating not least because of the way in which the plaintiffs categorised the defendants’ election of keyword searching as “choosing a horse as a mode of transportation . . . because it is the best available horse, even though technology has evolved and a superior form of transportation—the automobile—is now available.”

Before the defendants seek a right of reply in these pages, let us turn our attention speedily to the environmental impact of litigation!  Continue reading

Millnet becomes LCA partner

Last October, I was thrilled to be asked to attend the Fall Conference of Litigation Counsel of America (LCA), held in Boston. I reported on the conference and my experiences in posts entitled Postcard from Boston, Earwigging and No Tea Party in October and November last year.

LCA is an organisation of trial and litigation lawyers. Its almost 3500 Fellows are lawyers selected for their excellence and effectiveness in the litigation field. Drawn from every State of the Union their number is less than half of one percent of American lawyers. Established as a trial and appellate lawyer honorary society, the organisation reflects the best of the American Bar in the 21st century.

The LCA recognises as Diversity Partners companies and individuals who support the society through yearly commitments and sponsorships and Millnet is delighted to announce that the company has become a Diversity Partner.

To follow up my initial attendance in Boston, we are working with LCA to participate in their wide programme of events for this year and my colleague Naj Bueno and I will be flying to Santa Barbara, California in May to attend the Spring Conference, where we will be speaking on the subject of conceptual search/predictive coding/ computer assisted review on a panel with two other LCA Fellows.

Millnet regards being a Diversity Partner of LCA as a privilege and a wonderful opportunity to contribute to a special organisation representing the best in contentious lawyers around the US as well as further evidence of Millnet’s emergence as a litigation support company to be reckoned with around the world.

I will report further on LCA activities and Millnet’s involvement as the year progresses.

1677 and all that

One of the endearing characteristics of the law in this country is the concept of precedence. In civil law countries reference is made to the relevant Code and often scant attention is paid to previous experiences and decisions. Under the common law system, earlier decisions of superior courts are the very lifeblood of the law even if or precisely because lawyers love to winkle out ways of interpreting those decisions in ways which fit the cases they seek to argue.

It is, therefore, with some pleasure that I have the opportunity to write about that old friend The Statute of Frauds 1677: “An Act for prevention of Frauds and Perjuries. For prevention of any fraudulent Practices which are commonly endeavoured to be upheld by Perjury and Subornation of Perjury”.

335 years old and still going strong!

I am indebted to His Honour Judge Simon Brown QC for drawing my attention to the case of Golden Ocean Group Limited v Salgaocar Mining Industries PVT Ltd and Anil V Salgaocar where the Court of Appeal (Tomlinson and Rix LJJ and Sir Mark Waller) dismissed an appeal against an earlier decision by Mr Justice Christopher Clarke.

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It never rains…

If you thought that predictive coding (or whatever you choose to call it; I came across Black Box Coding and Easy Button Review recently) was the hot topic of the moment, a close second must be reports that the courts are getting to grips with a whole range of issues arising out of the disclosure process.

It is perhaps unfortunate that hard on the heels of their client being ordered to pay £135,000 by way of a wasted costs order for failings in the disclosure exercise [see What a Whopper, 8th March, 2012], Herbert Smith are once again in the firing line over what Mr Justice Richards called a “lackadaisical” approach to disclosure.

A report in The Lawyer on 14th March “Richards J slates Herbert Smith’s ‘lackadaisical’ approach to disclosure” reveals that there was a failure by Herbert Smith’s client to disclose efforts he made to raise equity to purchase a disputed shareholding.

Richards J said to Counsel instructed by Herbert Smith: Continue reading

What a whopper!

In the context of a claim for $274m, it might be argued that an order that the claimant pay £135,000 in wasted costs is of no great account.

I suspect that if you are Herbert Smith client West African Gas Pipeline Company Limited (known throughout the case as WAPCo) you might take a different view.

In short, WAPCo are claiming damages in respect of the additional costs to finish construction of a pipeline from Nigeria to Benin, Togo and Ghana after WAPCo terminated the original contract with Willbros West Africa Inc (WWAI) and used other contractors to finish the job. The defendant Willbros Global Holdings Inc, guaranteed the contract between WWAI and WAPCo.

Willbros are represented by Pinsent Masons and had claimed a total of £1.8 million following a series of alleged disclosure failures.

In his judgment at Mr Justice Ramsey said at paragraph 40 that failures in the disclosure process fell to be considered under seven headings:

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A peck of pickled peppers

Two things: Firstly, try saying this out loud as quickly as you can:

Peter Piper picked a peck of pickled peppers,
A peck of pickled peppers Peter Piper picked;
If Peter Piper picked a peck of pickled peppers,
Where’s the peck of pickled peppers Peter Piper picked?

Secondly, some of you will recall that in the good old days before the introduction to the UK of Napoleonic measures such as litres, schoolchildren learned that two pints were equivalent to one quart and four quarts were a gallon. You may have forgotten, however, that two gallons are equivalent to a peck, two pecks make a kenning and four pecks a bushel.

If you have been reading this blog over the last few weeks, you will know that Magistrate Judge Andrew Peck in New York is certainly not hiding his light under a bushel! Hardly a day goes by without a reference to his activities in his court on the subject of predictive coding or computer assisted review.

Part of the rationale of this blog is that the non techies amongst our readers should not be bamboozled by too much esoteric techspeak and that the contents should be mildly entertaining and also partly of value educationally in matters concerning e-disclosure, and in that vein, I would be failing in my objective if I did not share with you all a fascinating (and short) article written by e-disclosure expert Conor Crowley which has been drawn to my attention by our friends at Equivio.

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See Naples and dine

Charles Holloway wonders whether offering the “key to the warehouse” promises a better choice of menu when it comes to reducing the costs of civil litigation.

Some time ago, I recall having a somewhat unedifying row with a waiter at a restaurant in Naples, Italy as the Americans would say (presumably so as not to confuse it with Naples, Florida)! There were a lot of things wrong with that particular restaurant ranging from the unavailability of many items on the menu to the rudeness of the staff such that I became embroiled in an argument about the service charge element of the bill when I refused to pay it. This should not have come as any surprise to the waiter as I had complained about aspects of the food or the lack of it and the complete lack of anything approaching acceptable service as the meal progressed. Nonetheless, it appeared to come as much as a surprise to him as snow in the tropics.

One of the worst elements of this much hyped restaurant was the refusal of the staff upon request to provide a copy of the menu both for my wife and for me, at a time when there were fewer than a dozen other diners in a room designed and laid for upwards of 120 people! Apparently there was a shortage of menus (despite the fact that they were plainly visible piled up at the side of the room) and we were told we should make do with one between us! An inauspicious start, sadly confirmed as the meal progressed.

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Going to the wall

My eye was drawn to the recent piece in the Lawyer [Stephenson Harwood uses Facebook to serve court claim, 21st Feb, 2012] noting that the High Court has agreed that a claim may be served on a party via Facebook. 

If ever there was an indication that social media is now mainstream, this is surely it. Facebook was doubtless feeling left out after the court allowed an injunction to be served via Twitter in October 2009 [see my post The Last Straw, 6th Oct, 2009] but now Mr Justice Teare has allowed Facebook to join the party.

I can imagine that the proposed defendant was not a little annoyed as it appears that he had successfully evaded service previously by not being present at his last known address. The court presumably took the view that service of process is all about bringing the claim to the attention of the party against whom it is made and if the proposed defendant had an active Facebook account there was every reason to suppose that it would come to his notice in good time and he would be able to respond to it.

It seems that the court exercised its discretion to order service by an alternative method where appropriate (see CPR Rule 6.15). In this case, the court must have accepted that the defendant would have proper notice of the claim and be able to respond to it in due time.

Obvious really, when you think about it, and I wonder why no one has tried it before.