Monthly Archives: February 2013

Where to now, Bates?

Bates is a reasonably common English surname.

It may derive from the Old English “bat” meaning a boat and thus boatman. It may be a diminutive of “Bartholomew” which itself is a patronymic meaning “rich in land.” For example there is a record of a Bate le Tackman owning land in Lincolnshire in the 13th century. In 1635, records show that the family of Clement Bates and his wife Ann left England for the New World with their five children and two servants thus becoming some of the earliest settlers in what was to become the United States.(http://www.surnamedb.com/Surname/bates)

If you count yourself among the substantial number of avid followers in both this country and the US of the TV series Downton Abbey http://www.itv.com/downtonabbey you will be familiar with the character Bates, played by Brendan Coyle. For those not familiar with the story to date, Downton Abbey is the story of the Grantham family set in the period just before and after the First World War. Bates is employed by Lord Grantham as his valet. Subsequently Bates falls in love with ladies’ maid Anna but they cannot marry as Bates is still married to his first wife. Bates ends up in prison accused of the murder of his wife. For most of the last series Bates has been in prison awaiting trial, largely forgotten by all except the loyal Anna. Indeed, where to now, Bates?

We will have to wait for the fourth series to see what Julian Fellowes has planned for his rather lugubrious character, but after all the angst about the Crawleys’ marriage (or not) and the other shortlived but ultimately disastrous liaisons in the story, I would not bet against Bates being acquitted thereby becoming free to marry the long suffering Anna.

Some years before the events portrayed in Downton Abbey, one Edwin G. Bates of New York City had invented and patented an automatic numbering machine named the Bates Automatic Numbering-Machine or Bates stamper. Lawyers quickly became familiar with this machine which allowed numbers, dates or time-marks to be impressed on images and documents as they were scanned or processed, for example, during the discovery stage of preparations for trial. Hence Bates numbers.

Where to now Bates? I confess I had rather assumed that the days of Bates numbers were, well, numbered! After all, what in effect solved a categorisation problem when lawyers were dealing with paper was not likely to survive the electronic and digital age in its original format.

How wrong can you be!?

Courtesy of a  recent entry on LinkedIn posted by New York based lawyer Monique Altheim, I have been alerted to a strange decision where the court has ordered that Bates numbers MUST be used in a discovery dispute http://ow.ly/2uYSS5

What caught my eye was the headline “Please don’t Bates stamp e-discovery.” California lawyer, Joshua Gilliland, writing as a blogger for Bow Tie Law (look at the photo on the above link and you will see what I mean) explains why the case is his eDiscovery nightmare.

As he says:

“Why is this a case a nightmare for me? Because it applies a paper model of discovery to electronically stored information, requiring a conversion of ESI into a TIFF with Bates Stamps (a conversion which can triple processing costs with some service providers). What is even stranger about it is the form of production battle centered on PDFs vs TIFF, both of which are static images. One difference is a PDF can be either non-searchable (thus like a TIFF) or searchable (thus more like a native file).”

He also compares the order for Bates Stamps to trying to fuel a hybrid car with coal! His article is short and, some would say, pithy. It certainly pulls no punches with its criticism of attorneys who want Bates numbers on lots of pieces of paper, forgetting that:

“…we now live in a world where the content on a smartphone can fill the first floor of a library. Data needs to be reviewed as data for there to be any chance to meaningfully understand its content. Moreover, as to the Bates Numbering to organize the ESI issue, native files can have a “control number” that is the functional equivalent of a Bates Number for management in a review platform. If there is still a concern about whether a file has been changed, parties can use MD5 hash values instead, to ensure the ESI has not been modified.

It is worth recording Mr Gilliland’s conclusions:

“Finally, I believe forward thinking local rules are extremely helpful for litigants. However, as technically (sic)changes, these rules need to be updated to incorporate how computer-assisted review can cut costs, advances in processing or even the cost-effectiveness of remote depositions. What was forward thinking in 2006 can be outdated in 2013.

In the end, converting standard ESI like email to TIFFs to brand Bates Numbers should give lawyers nightmares of high processing costs, slow manual review and unhappy clients. It should only be done when the native file itself is not in a reasonably useable form, thus the static image is the only reasonably useable form.”

In my view, all this comes down to having a sensible conversation with your opponent before setting out on a course which may prove to be costly, unnecessary and possibly futile. More cooperation is the name of the game here and for me, this looks like the answer to the question, where to now, Bates?

Podcast: Evidence to trip up the unwary.

In the fourth and last in the current series of podcasts, Millnet’s Head of Technical Operations, Stuart Clarke, talks to Chris Dale of the E-Disclosure Information Project about types of evidence which have the potential to trip up lawyers who fail to ask the right questions.

The speakers are introduced by Millnet director, Charles Holloway.

The broadcast is just under 13 minutes long and you can listen to it on the Millnet iPadio channel at ipadio.com/channels/millnet

A PDF transcript of the interview is available here

Hasten slowly

I love oxymorons.

Woodbine used to advertise their cigarettes as the “great, little cigarette” which conjured up precisely the size of the cigarette (they were smaller than the standard size) and the great taste and value (whatever takes your fancy!) For Latin lovers, hasten slowly is the English translation of Festina Lente. An example might be the tortoise and the hare, one of Aesop’s Fables, where a hare mocks a tortoise for being slow and challenges him to a race. Super confident of his ability to win the race, the hare sets off at speed but stops for a rest on the way. The day is so warm and the hare has run so fast that he falls asleep. When he wakes up, he finds that the tortoise has finished the race before him, despite moving so slowly.

The phrase has come to mean that if you have a task to perform or a destination to reach you will do better if you set about the task or out on the journey in a measured and structured way. If you have ever walked in a hurry along a crowded street where everyone else seems to have nothing better to do but meander along in front of you, you will know what I mean. The faster you go, the more obstacles appear in front of you.

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Civil Procedure (Amendment) Rules 2013 published

The Civil Procedure (Amendment ) Rules 2013 were published on February 12th and broadly speaking the new rules will all come into effect on April 1st.

Chris Dale has produced a summary of the provisions for the E Disclosure Information Project blog which may be read at http://bit.ly/YfFzfO

Millnet has been advising law firms for some time on the potential changes. This advice is being distilled into a short, easy to follow, step by step guide, which will be available shortly so watch this space for notice of publication.

Jackson reforms fall at first hurdle?

 

“When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean – neither more nor less.” (Alice through the Looking Glass, by Lewis Carroll).

In what must be regarded as a disappointing decision in the Court of Appeal last week in Henry v News Group Newspapers [2013] EWCA Civ 19, the earlier decision of the costs judge was reversed.

The case arose out of the Baby P case and concerned an action for defamation brought by Mrs Henry against The Sun newspaper.The case was settled and the decision appealed was that of the costs judge. Normally, having obtained damages, Mrs Henry would have been entitled to costs but the case was subject to a pilot scheme which required Mrs Henry to file a budget in court for approval. In the event, the actual costs incurred exceeded the approved budget by some £268,000 and the court decided that she could not recover the element for which approval had not been sought.

Not surprisingly, Mrs Henry appealed. What is, perhaps, surprising is that the Court of Appeal allowed her appeal. Unless the decision is overturned in the Supreme Court, this leaves the question of costs in a state of considerable flux just weeks before the new rules on budgets come into effect.

The Court of Appeal decision appears to fly in the face of the Jackson reforms, allowing, as it does, a claimant to recover substantial costs which have not been approved. Although the costs were said to be proportionate and reasonably incurred, the Court of Appeal appears to have ignored the failure by Mrs Henry to follow the terms of the Practice Direction.

Have the Jackson reforms, therefore, fallen at the first hurdle? There is now Court of Appeal authority that departure from the costs regime in the Practice Direction may be permissible, thereby at a stroke, undermining what appeared to be one of the central pillars of the new rules.

Will the Supreme Court ride to the rescue and allow all “the King’s horses and all the King’s men” to put Humpty Dumpty together again? We will have to wait and see.