Viacom v. YouTube - ESI re-definition ?

A mix bag of copyrights, privacy, databases, ediscovery and the judge being accused of “lack of tech cluefulness,” , read on…Viacom v. YouTube

‘How to’ collaborate with diverse stakeholders - an exploration

Given that most organisations have many policies and procedures covering various legal and compliance requirements and that there is already an industry process model, Electronic Discovery Reference Model, why do I still feel the need for a collaboration framework?

Furthermore, there are technology vendors/suppliers providing various forensics and investigations related tools and software for ediscovery/disclosure. Also, this year there are several organisations providing trainings/seminars on ediscovery/disclosure. Not surprisingly, lots of trainings/seminars have been conducted focusing on the ‘what’ and ‘why’ of ediscovery/disclosure. When the ‘how to do…’ is encapsulated or prescribed in process models or in cookbook approaches like ‘tips and traps’, the application or rather the act of performing the ediscovery/disclosure activities will still need to be carry out by people and team of people. Process models and ‘tips and trap’ will add to the heap of processes and procedures for organisations. Also, people generally trump or ignore procedures especially if there are too many to chew.

From my own real-world lessons, having worked with several major organisations in large projects/programmes involving software development/implementation, ediscovery/disclosure activities will require not only tools, process models and procedures. Like software development projects, ediscovery activities involve many stakeholders with competing needs and interests, many dependencies all requiring resources to be used effectively. Why not utilise a project management approach to manage the resources?

As far as I am aware, most or practically all commercial strength project management approaches and methodologies do not provide any framework for dealing with the people aspects in managing projects.

For example, PRINCE2 has detailed description of managing product deliverables and also steps for managing risks. I recalled in a PRINCE2 Practitioner training course, the instructor said something along the lines: ‘For effective project management, the people skills are crucial and are not covered under PRINCE2 trainings or in the manuals’.

Moreover, even if ‘best practice’ guidelines such as the IT Infractructure Library (ITIL) is adopted by organisation, the challenges of co-ordinating and working with diverse teams of people as when in an ediscovery scenario will be even more pressing. People cannot be certified against guidelines or even standards e.g. BS 15000, the IT Service Management Standard.

Individuals and team dynamics are what make an organisation ‘tick’. It is also common to hear other phrases such as ‘people matters’ or ‘we value people’. However, when it comes to tapping into (or the buzzword –empowering) individual to deliver the required value, the ‘tick’ becomes more like a loud bang. Loud bangs are generally not welcomed (unlike in Chinese celebration where the loud bang from fire crackers are said to drive away demons/back luck etc) as noises are deemed as unpleasant causing discomfort and unanticipated consequences. Is this why people avoid or simply fail to cope with the dynamics of people interaction?

Perhaps I have lost touch with my own abilities to do what comes naturally. How to get back in touch with my own abilities? How to get in touch and stay in touch with my own abilities especially when I am faced with chaos or in chaos situation whereby I have to interact with others.

Looking back to the heydays of the 80s, where there were less processes or tools and less rules and regulations, I was better equipped (by being less equipped with choices) to get any job (mainly building great systems and running a family) done with lots of ticks and banging. Nowadays there are way too many processes/tools and every actions I take there are rules/regulations to catch me out or trap me. So much so, I dread the thought of walking into an office, especially in an organisation where people, process and technology (what else is there in a 21st office?) actually restrict and hinder my abilities to feel, think and act. So far, I have been mostly fortunate to work for/with companies whereby the people makes it worthwhile going into office to work.

Do I have an alternative to escape the 21st organisational trap? Well, I have been busy re-training and re-visiting my long held interests and most importantly reflecting on my life and how I want to live my life. I am taking small steps each day and learning to cope with needing less and reaching out into my inner strengths.

One realisation is that when I am in chaos, I will find a frame of reference to make me feel good again. This frame of reference can be anything or nothing. When I find my frame of reference I get the ‘tick’ and this makes me feel good. Feeling good enable me to make sense of what I need to do. Doing then becomes second nature, effortless work or task.

When in Chao, find a frame of reference!

In collaboration with others why not find a frame of reference too?!


Hot off the e-mail Press!

I received an invite today to register for the 2nd annual electronic evidence and e-discovery forum.

I attended the 1st Forum last year and the focus then was mostly related to forensic stuff and presentations from top notch e-discovery vendors offering solutions/services based on the edrm.

Judging by the agenda, a mixed bag of themes and topics are planned for Oct 2008.

Heh! Incidents, investigations, readiness all sounds like fun to me. However I doubt if any of the technical and legal presentations will be fun.

Maybe the organiser will prove me wrong and comes up with 2 days packed with fun learning.

Anyhow, the listed agenda:

  • Provide a wealth of practical information and examples of best practice on building proactive capabilities for disclosure and discovery requests
  • Explain how best to contain costs while ensuring a high degree of forensic and litigation readiness
  • Investigate how to strike the perfect balance when deploying in-house capabilities and using the services of external service suppliers 
  • Detail what the perfect e-discovery crisis response team should look like, which departments should be involved internally, and explain how to ensure your organisation can react quickly and cost-efficiently 
  • Highlight pitfalls to watch out for, and give pointers on how to overcome unexpected problems and hurdles that organisations can encounter during events and incidents
  • Offer an opportunity to ensure that your policies are up-to-date with those of your competitors and peers
  • Ensure you are aware of the issues you may encounter if you face a forensic or litigation engagement and are not prepared

Key themes and scenarios for 2008 include:

  • Internally generated events
    > Fraud and theft
    > Investigations into employee activity
    > Employee disputes
    > Whistle blowing
  • Compliance issues
    > Investigation by the government or regulatory body
    > Data privacy when discovering data in different jurisdictions
  • Information leakage
    > Insiders divulging information (e.g. about mergers and acquisitions)
    > Espionage

Changing British Standards & other initiatives

The existing British Standard Institute, BIP 0008 code of practice for “legal admissibility and evidential weight of information stored electronically” is due to be redesigned in September 2008. The new standard, BS 10008 entitled “Evidential Weight and Legal Admissibility of Electronic Information” is currently on the BSI website for comment.

According to the draft, the model is based on ‘the Plan-Do-Check-Act model (PDCA) used in the majority of management system standards’.

In the ediscovery arena, there is the Electronic Discovery Reference Model (EDRM) which was setup due to the lack of standards and guidelines in the electronic discovery market. The EDRM is a generic practical process model.

Also, there is another ‘closed’ (non lawyers are not welcome) working group looking at protocols to supplement the CPRs.

What an interesting mix of views/perspectives?!

 

a dedicated video folder for electronic discovery - FindLaw

For anyone interested in viewing videos, check out this at Findlaw.

Do view the ‘Other Legal Technology Videos’ and  see if you can catch the common themes in these videos and the electronic discovery videos.

 

The Lawyer - calling all litigation professionals

Ready yourself for the next 12 months of increased litigation and the challenges of electronic disclosure - From The Lawyer.

What are the challenges of electronic disclosure?

According to the speakers/presenters from the legal world, the challenges are explored by themes which are;

Implications of the latest electronic disclosure developments
Minimising costs associated with eDisclosure
Best practices for managing and preserving electronic information
Developing litigation response strategies
Tips and traps for records management
Litigation strategy
Plus much more

Not unusual that the legal world have tips and traps for records management.

On the subject of record management, I went to a talk & workshop on records management only last week, conducted by IT/Software professionals. The presenter actually raised some very interesting questions (no tips and traps) for the workshop discussions. One discussion topic was on ‘how to manage across boundaries (inside and outside the organisation)?’

Records management is not a challenge in edisclosure. Records management is already defined by the rules of the games i.e. the CPRs and the various procedures/processes for edisclosure. Ah! Maybe the rules of the games need to be reviewed or re-learnt/re-visited (by lawyers?) or maybe the lawyer’s interpretation of records management is different from what the IT/Software people viewed as records management. For the record, even within the IT/Software community records management have generated heated discussions especially when viewed in terms of knowledge management. Edisclosure is getting ‘relevant/needed/asked for/disputed/evidential’ (or any other keywords searched for) information from knowledge workers to other knowledge workers (or information seekers). Information is knowledge/power.

To me, this is the real challenge. It will involve not only strategy but the art of getting these knowledge workers to really want to collaborate. Who will be responsible for getting the information? Who will be fined? Knowledge workers or their managers?

Maybe the next Lawyer Conference will start to address the real challenges of edisclosure.

Is edisclosure on the ICCA published agenda?

Since completion of my dissertation, I have not been actively searching for legal articles or news.

I do know that in the arbitration world, there is an event coming up in June in Dublin. The International Council for Commercial Arbitration (ICCA), founded in 1961, is the leading world-wide organization devoted to promoting international arbitration and other forms of dispute resolution. I have checked the Dublin ICCA 2008 programme and also tried to join the 9th June Workshop. I am in Dublin from 3rd June (for something else) and since I will be free on 9th June, I have requested the Dublin Conference organisers for just one day pass but was flatly rejected. What a pity! Anyhow edisclosure is not on the published agenda.

Luckily I have two great Irish friends, Ms Eileen Duffy and Mr Terence O’Keeffe  (both CIArb Mediators ) who will be having dinner with me on 8th June. I certainly look forward to seeing them again in the beautiful city of Dublin.

Who would have guessed?

I subscribe to the ProBlogger Blog Tips mailing list and have been receiving & deleting the e-mails for months. Today I actually opened and read the Tips, dated 17-May. Good job I didn’t read the Blog Tips to decide on whether to blog or not. I found couple of questions that caught my attention;
• Is anyone reading my blog?
According to my website stats, since Dec 2007 to 18 May 2008, my blog got 29387 hits. Mostly from the US and the Great Britain. Fourth place (pages and hits) is the Russian Federation and fifth is South Korea. (I am not counting the ‘unknown’ countries). Aways something amazing on the net! Who would have guessed?

What are other bloggers writing about my blog?
I did find a blogger commenting on my blog!
Check it out here or do a google search on cher devey.

• Do I have anything original and useful to say on my topic?
Is anything original these days?

• What else could I do with the time that I spend on this blog?
Ah! I only blog when I feel like it.

US and UK/EU Legal & Compliance “Hot Topics”

It doesn’t look like ediscovery is under the “Hot Topics”.

Maybe ‘ediscovery’ is too hot to handle. The topics listed under the programme, such as recording, securing and accessing client communications are mostly to do with Know Your Customer (KYC).
It would be interesting to hear the recent lessons from the compliance officers and also how they handle and implement KYC.

Will there be ‘leakages’ of information from the International Derivatives Expo 2008?

Highly unlikely…

Alternative Search Technologies - Too Good to be True

It seems that alternative search technologies (alternative to the familiar Keyword and Boolean searches) touted by Vendors are considered as ‘too good to be true’. Check it out yourself at In Search of Better E-Discovery Methods By H. Christopher Boehning and Daniel J. Toal, New York Law Journal April 23, 2008

The above legal article also mentioned the Text Retrieval Conference (TREC) 2006 study which was also examined by Will Uppington in the article, Better Search for E-Discovery, March 11th, 2008

What I find interesting in Will Uppington’s article is the finding; ‘One of the best ways to get better search queries is to commit human resources to improving them, by putting a “human-in-the-loop” while performing searches’.

Reading in between these two ‘search themed’ titles, one from the legal side and the other from a technical perspective, highlighted the contrasting findings and interpretation on the TREC 2006 study

What else can we say/talk about the ‘human-in-the loop’, the ‘virtuous cycle of iterative feedback’ & “interactive” search methodology?

Well such phrases/concepts are not new. What is new is that the ‘human actions’ aspects are creeping (awareness?) into the ediscovery space. Other knowledge researchers outside the ediscovery domain have been busily coming up with phrases/concepts such as the ‘concept searching’ methodologies. Reality (or inertia adoption) testing of such newer technologies are clearly not well understood (too good to be true?) by the courts and practitioners.

On human actions and computer programs, a beautiful quote comes from my friend, Roger C: “While computer programs can write other computer programs, they can’t write the first program”.

To that I will add: An expert is only effective in the human-in-the-loop search if the expert is also an expert in the codes