It has been unusually hot in (South) London. Not sunbathing and not complaining about the weather but a different kind of complaint.
I was stranded for nearly one and half hour in a no power train yesterday and couldn’t help hearing several angry and frustrated mobile exchanges between couple of businessmen with the South East HQ customer services. The angry exchanges were mainly triggered because there were no communications (appeared to be no guard on the train either!) to the passengers on what was happening. The lack of visible actions on the train and the lack of reassurance from the HQ certainly did not help to calm the nerves of the passengers in a hot, broken down train in busy Waterloo tracks.
Is it difficult to relay basic information to passengers (who are entitled to be informed) the behind the scenes activities between the train driver, the engineers and HQ? I guess ‘the need to know’ (or walkabout alerting services?) by/to the passengers is not high on the HQ customer services list. No wonder train fares increases every year to pay for ‘unnecessary or avoidable’ situations – just a thought - but a rather annoying thought when one missed several business appointments!
In this age of ‘speedy and accessible’ communication (mobile connectivity etc.), customer’s expectation and fulfilment still pose challenges.
Is it also the same in the ediscovery/edisclosure world? I hazard a guess – a doubtless assertion (with the assumption that access to power/data is obtainable) - that the behind the scenes activities between the technical folks and legal and management team are exchanged too late to avoid aggros and costs. (Hence early confer/meet if this is available to parties).
In ediscovery/edisclosure, one of the behind the scene and less talk about (or blogged or written about) is evidence. This is highlighted by the use of generic term such as ‘information exchange’ in international disputes. The ‘e-words’ including ‘evidence’ are potentially culturally sensitive to use. Imagine having to describe the ‘e-evidence’ to all parties without getting cross-wired or inflicting cross-eyed to reviewers?!
For me, the term and usage of evidence in the context of international disputes requires behind the scenes re-assessment to make sense to me when dealing with ediscovery/edisclosure.
I guess evidence is also being re-assessed by folks in Asia. The ADR in Asia Conference 2009 in Hong Kong on 15th September has a topic: Interim Measures and Evidence - Emerging practices and movements.
Will e-disclosure surface under this topic?
I certainly would love to hear from folks who will be attending the Conference in Hong Kong this September. I will be in Peking University and may not be able to do the trip.
Enjoy!
At what price is ‘Access To Justice’? Taming e-disclosure via costs management by the court?
When parties are in disputes, do they think about the costs of getting their differences resolve? If they do they will think twice before going to court and/or litigate. Thinking about the costs associated with civil litigation is further aggravated with e-disclosure requirements. Also, if parties are not thinking about e-disclosure, the task has been done (in bite size - Phase 1) by the judiciary in England and Wales. The preliminary report on Civil Litigation Costs Review by Lord Justice Jackson has a chapter (15 pages) devoted to e-disclosure.
Even if you’re not interested in e-disclosure or do not want to get anywhere close to litigation or the courts, do take a look at Chapter 40. The preliminary report provides a general overview of e-disclosure (and also reviewed the Electronic Disclosure Reference Model (ERDM)?!- beware that this is not a generic framework for all e-disclosure) and also covers various costs aspects with examples of cases.
I am not sure how feedback are gathered and reviewed as the preliminary report also request for feedback. Here’s the extracted Conclusion:
8. CONCLUSION
8.1 Need to consider e-disclosure. In every substantial case where documentation is held electronically, consideration must be given to the problems involved with and the costs of e-disclosure. The electronic material may be so extensive that it is impracticable to print all documents out and then to proceed with conventional disclosure. In that event there is no alternative to e-disclosure.
8.2 Request for feedback. It would be helpful to hear from recent users concerning their experience of e-disclosure. In particular it would be helpful to hear from users whether and to what extent (a) any particular approach to e-disclosure has saved costs in particular cases and (b) conversely any approach to e-disclosure has caused wastage of costs in particular cases.
8.3 I have indicated in section 5 above some methods by which the costs of edisclosuremight be controlled. During Phase 2 I should be pleased to receive any comments on those issues. I should also welcome any other proposals for controlling disclosure costs in cases where the underlying project or transaction generated extensive electronic material. For example, if we introduce into our CPR some similar provision to FRCP rule 26(f)(3), might that help to reduce both the risks and the costs of e-disclosure (because the lawyers would be at less risk of accidentally waiving privilege)?
8.4 It would also be helpful to hear whether the costs figures supplied to me, and set out in section 6 above, accord with the experience of court users.
One would have thought that ‘Access to Justice’ in the information age would also mean access to justice. Perhaps the’ Woolf v Genn: the decline of civil justice’ debate provides more insight into the current state of civil litigation.
Personally, if I can get my ISP (the data controller) to read (& acknowledge) the newly launched ‘Personal Data Guardianship Code’, I will have achieved a milestone. I have had two broadband internet disconnections (in April and this June), each disconnection requiring a re-connection which takes 3-4 wks. I have studied Data Protection Law (as part of an LLM programme) and am currently reviewing articles touching on privacy and data protection. Yet I am powerless when it comes to data (account) outside my reach.
Perhaps with the concept of data controller and data subject and with data swishing and swirling in all places, we can’t figure out who owns the data. Note the question on the ownership of data which I twittered :’The ethics of privacy - a new label for not owning or not responsible for the data?’
Dealing with data and talking about data seems rather bland, so let’s label it with culture to bring data to life, so that’s what the British Computer Society (BCS), in partnership with the Information Security Awareness Forum (ISAF) founded by the ISSA-UK, has launched the Personal Data Guardianship Code in an effort to change the culture of organisations towards the handling of personal data. (as announced on the BCS website).
The Personal Data Guardianship Code (Personal Highway Code) is available for download at the BCS website.
For my ISP, please read this one liner even if you can’t follow the DPA or the Personal Highway Code:
Every organisation which handles personal data should have in place specific rules and procedures that protect the rights of data subjects.
Amen !
Recently, I was at two events (ADR related) and both required me to note my carbon footprint.
My first event was ‘Resolving Business Disputes in Today’s China’ in New York City (organised by the JurisConference). It was a great event, great lunch and interesting lunch debate. Although the event has nothing to do with edisclosure/ediscovery, one of the speaker/panellist did say ‘we avoid ediscovery’. Maybe resolving disputes in today’s China are being viewed as ‘resolving disputes being the same as doing businesses’. Doing businesses in these parts of the world are still steep in the traditional ways of using and/or maintaining ‘face’ or ‘guanxi’. If you have guanxi, then ethical (like arbitrator’s biases or impartiality or independence) or trust issues just do not surface or are naturally imposed in the guanxi relationships. (Hence, Med-Arb is a natural way for resolving disputes in the Far East).
However, there’s more than one party in a dispute and if one of them is not accustomed to guanxi then the game of ‘where to go or which seat or which institution or who has the leverage/assets/ power to turn the table?’ provides the dispute drama. The game is not whether we can find the evidence or whether we need the evidence. It is not a ‘truth seeking’ game. Is that why edisclosure/ediscovery is avoided?
So, my next hob nobbing (for want of a better term?) event is at The Hague. The event was ‘Weighing the Facts: Information Exchange and Presentation of Evidence in International Commercial and Investment Arbitration’.
Note that ‘edisclosure’ was not in the title but there was a topic ‘The Present and Future of Electronic Disclosure in International Arbitration. It was a great pity that only a handful of people were at the second day (half day session only). On the second day, there was a detailed ediscovery presentation. It would have been a great finishing highlight if all the speakers/panellists could gather together (collaboratively?) and share their consensus or divergence views or experiences.
In case anyone is wondering what about the IBA Rules of Evidence? What about it? From what I’ve heard - No changes required now and also in the foreseeable future. Nah! No e-evidence rules required.
Instead, it seems that privilege and ethical issues will become increasingly problematic in information exchange or disclosure in international arbitration. No amount of notes/guidelines/protocols/rules/laws will help cement or create a smooth level playing field for the international players and parties.
What have we got left then? Hob nobbing and/or guanxi? We all know what is hot tubbing. Hob nobbing may potentially create more conflicts of interests (ethical issues) unlike guanxi relationships whereby ‘beneficial rather than conflicting’ interests are at play. More food for exploration!
Well…the wheels of justice chuckle along crankily with or without ediscovery/edisclosure. Maybe the good old fashion hob nobbing and/or guanxi are the new unwritten protocols/rules/laws for e-evidence. Only time will tell…
I have been involved with countless IT software development projects whereby many stakeholders (including lawyers) tried to work as a team to deliver a system/software to meet various requirements. I said ‘tried’ instead of ‘must’ or ‘need’ or ‘should’.
In my role as an IT manager or project manager, I will never say to my team ‘we must get along with so and so to build this system’ or ‘we should try to talk to each other’. Who relishes to be ‘told’ or talk to on what to do? Definitely not want that directed at/to me and so why do it to my fellow workmates/colleague? It’s simply counterproductive and easily generate towards an ‘I told you so’ culture which ultimately leads to ‘a blaming culture’. In a blaming culture, creating a meaningful or ‘good stuff’ outcomes gets circuited.
I have recently come across several articles/postings highlighting that ‘IT folks and lawyers are still not talking or failure to co-operate’ in ediscovery activities. This is the posting which got me to blog. BTW, a catchy title ‘Legal and IT Are Still Not Communicating’. The posting ended by stating that ‘Only dialog between legal and IT will change that’. (i.e. the respective responsibilities of legal and IT still are not being carried out by many because they don’t understand them). Understanding starts somewhere and dialog is great if both parties are willing to have a dialog. Even building bridges between IT folks and lawyers have surfaced elsewhere.
Let it be known that it is not that IT folks are not talking to lawyers; it is most likely that ‘the talk’ is directed from lawyers to IT folks. (I am assuming in most organizations, lawyers initiate or announce the litigation hold and other ediscovery requests to the IT department). IT folks are used to receiving requests from other departments (including lawyers). However what is unusual in ediscovery is that most IT folks (unless they are trained on ediscovery terms and have exposure to ediscovery activities or have been fully briefly beforehand by legal staff) will treat the request as an IT request rather than an ediscovery requests. It’s not that ‘we are not talking’, it’s more like ‘what are we talking about?’ and ‘how do we start to get to the ‘same starting page?’. Now, how to get both parties to turn ‘talking’ into meaningful dialogue?
Failure starts when both wants to start building bridges to bridge with each other and failed to recognize that the simplest bridge is defining a raft to get to a bridge. There is always a bridge somewhere already waiting for us, just finding a raft is the first hurdle.
Remember the story of building a bridge? Let’s start by learning to define a raft and not focus on building bridges as there’re already bridges (i.e. ediscovery models, tools/systems) waiting to be used.
Finding willing raft designers from both parties is probably the first hurdle 
No blogging means no internet broadband access at home :-).
In early April, my internet connection was ‘data-jacked’ by another ISP when they did an upgrade to their system using an ‘old’ or unpurged database/dataset. ‘Old’ as I do not hold a current internet account with them and whatever data they hold about me should have been removed or marked obsolete or inactive.
It took two weeks for my ISP to discover who has my MAC and it took me more than two days to get back my MAC and another week for reconnection. It took several calls and a complaint letter to both ISPs to investigate this incident and was only told yesterday (1st May) about the cause of the incident.
A friend said ‘bad karma’! My astrologist report for April highlighted ‘nothing will run smoothly, take no action, take stock or clean your slate!’ If I did not take any action I will definitely not be blogging this as my internet will definitely be still in ‘data-jacked’ mode.
Oh! I also went mobile internet (3G) and wireless connectivity in an attempt to stay ‘connected’. Looking back, April was certainly ‘a no action month’ as rightly predicted by the astrologist, just my interpretation of ‘action’ to mean ‘must act’!
Maybe I will write up my April action-packed activities revolving around internet data-jacking, data-uploading, mobile and wireless security and my trips to the mobile shops and the local cafe for wifi
So… no blogging, couple of twittering, e-mailed out a meeting report for the BCSWomen Group and wrote my motivation letter for my PhD application.
Better luck for rest of this year..I hope!
Keywords: Digital evidence, digital forensics, data forensics, investigative work, security breaches (& privacy and data breaches?), information assurance and law.
The Association of Digital Forensics Security and Law (ADFSL) fourth annual conference will be held in Burlington, Vermont, USA on May 20-22, 2009.
The conference description has many keywords and touches on a wide variety of topics and fields. Ah! a conference in beautiful Vermont. I have not been there, have seen beautiful pictures. Maybe if investigative work is done in beautiful settings, people may be more inspired naturally to collaborate and work together :-). Well… the conference organisers noted this : Today, many professionals are working with others from different fields - lawyers are working with IT managers, law enforcement are working with forensics engineers. Well, at least they are trying.
On a different scale, the third International Crime Science Conference will be at the British Library in London on 15th July 2009. Mmm another place I have not been to. Instead of highlighting about professionals trying to work together, ‘gangs and guns’ serve the medium. Perhaps this is the only distinguishable aspects between crime investigation and ediscovery/edisclosure for civil cases. I guess delineating or distinguishing data/computer/digital forensics and digital evidence will be covered by researchers. High drama though occurs in organisations, courts and private rooms.
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"Electronic Discovery/Disclosure: From Litigation to International Commercial Arbitration" is now published in The International Journal of Arbitration, Mediation and Dispute Management
V 74, N 4, Nov 2008, ISSN 00037877
(The Arbitration Journal by the Chartered Institute of Arbitrators).