Dawn Raids this week: be prepared

by James Farnell on May 17, 2013 in Best Practice & Top Tips, Case Studies & War Stories with No comments

The London offices of BP and Shell were raided on Tuesday by the European Commission.  Statoil ASA in Norway also confirmed that they had been raided and were under investigation.  At the same time, our own panel of legal and technical experts was gathering to discuss the second in our series of webinars concerning electronic evidence in Europe entitled ‘Dawn Raid Survival’.  The topic and timing for this discussion could not, indeed, have been more appropriate…   If you did miss this session, there is a summary below or if you would like to listen to the webinar again in full, please see below:

Next webinar: Given the success of our last two sessions, I urge you to join us for our third webinar in this series on the 28 May at 14:00 CET: “Electronic Discovery: A Foreign Concept in Europe?”. To register please follow this link http://www.krollontrack.co.uk/webinars/electronic-discovery-a-foreign-concept-in-continental-europe/

We will be joined by Claire Bernier (partner at Altana, Paris), Santiago Gomez Sancha (Director of Information Services, Uria Menendez, Madrid), and Tina Shah (Electronic Evidence Consultant, Kroll Ontrack, London).

Dawn raid survival

In Tuesday’s raids the Commission had concerns the companies involved may have colluded in reporting distorted prices to a Price Reporting Agency in order to manipulate the published prices for oil and bio-fuel products.  For any suspected activity which negatively impacts on competition within the European marketplace, both the Commission and National regulatory authorities have power to intervene directly and ‘raid’ companies for evidence the activity.

How raided companies should respond in such volatile and high-stress situations, and what practical steps they should take was discussed by our panel which included: Dr Helmut Janssen (partner at Luther in Brussels and Dusseldorf), Julie Catala Marty (partner at Bird & Bird, Paris), and Rainer Ziener (Computer Forensic Consultant at Kroll Ontrack, Stuttgart).

Some of the main themes discussed were as follows:

Whilst the powers of the European Commission and National Authorities are broadly the same, important differences exist.  Helmut and Julie compared notes on the specifics of both the French and German authorities as compared to the Commission’s practices.  For example, Helmut pointed out that whilst the EU Competition authorities are authorized to enter premises to copy relevant information, German competition authorities have the right to physically remove property from the premises (including hard drives, phones and computers) for later analysis at the authorities’ office.  Companies should therefore take local legal advice as to how to respond in each case.

Julie provided a list of essential and practical tips companies should follow in the event of a dawn raid:

  1. Contacting a legal representative is the first thing to do, and the company should request that the investigation is not commenced before an advisor is present.  Mr Dirk van Erps (Head of Forenisc IT Group, Cartel Directorate of DG Comp) who was in attendance at our webinar clarified that the Commission would generally wait up to 20 minutes for a representative to arrive at the raided premises before commencing the investigation, but not longer.
  2. Legal advisers should check the scope of the investigation, in particular for details of the products concerned, the type of behavior and the time period under investigation.
  3. The company must keep track of the information the authorities are taking so they can collect their own copy and the legal teams can start reviewing it and organising their defence as soon as possible once the authorities have left.
  4. Informing the staff of what is going on is of paramount importance.  They should stay calm, not answer questions beyond the scope of the investigation or comment outside the company.  They must not destroy or delete documents and must remember that the company is under a duty to cooperate fully.
  5. It is also was important to keep the business running and Julie suggested the authorities could be asked if it is possible to use equipment needed to continue basic operations.

The panelists also discussed the difficulties that arise when legally privileged information falls into the hands of the authorities and how to handle the restitution of this information.

In terms of the IT aspects of raids, Rainer Ziener of Kroll Ontrack emphasized that different types of data storage media and IT architecture make the job of extracting information quickly quite challenging.  Being prepared ahead of a raid by having a data map and inventory of hardware was strongly recommended.  This ensures both that cooperation with the authorities can take place, but also facilitates the rapid formulation of a legal strategy and defence once the authorities have left.  It could take significantly more time to assist a company after a dawn raid if it does not have a detailed knowledge of the firm’s IT infrastructure.

Julie emphasized that Mock Dawn Raids help reduce the risk of mistakes during an actual raid (which can be extremely costly).  They test the reflexes of the business and help assess the risk of company infringing the law.

Electronic Health Checks for Companies

by James Farnell on May 8, 2013 in Pieces of Interest with No comments
Electronic Health Check

The first in our series of webinars about the use of electronic evidence in Europe started with resounding success last week.  We had over one hundred attendees from 21 countries to listen in to the live panel discussion of Till Kleinhans (Head of Business Integrity at Allianz), Hugues Valette Viallard (partner at Latham & Watkins in Paris and Brussels) and our own electronic evidence consultant Thomas Sely (Kroll Ontrack, Paris).

The discussion focused on the conduct of internal investigations in terms of ‘staying a step ahead of the regulators’ (which was the official title of the webinar) and identifying wrongdoing within a company at an early stage so that remedial steps can be taken.  The role of electronic evidence was discussed in this context in terms of assisting both internal compliance departments and law firms to efficiently and quickly seek out evidence of prohibited activity.

We were particularly pleased to have Till Kleinhans and Hugues Valette Villard contributing to this topic.  Both have extensive experience in their respective fields and were therefore able to bring some valuable insights to this discussion.   An overview of the discussion is set out below, but if you would like to listen to the discussion in full, please use the following link: http://www.youtube.com/watch?v=8wlmS2lTda8&list=UUTuIqMZrl9xCQMqY9IJl0RA&index=1.

Staying a step ahead of the regulators

Till provided some interesting insights on the internal systems Allianz use to monitor a very wide range of issues including internal fraud, corruption, antitrust activity, harassment, security and blackmail, and how such investigations are handled.  For investigations of a serious nature Allianz generally require the external support of lawyers and IT specialists to manage the electronic evidence aspects of the investigation.  Indeed, Till made the point that for ‘up to date’ knowledge in such matters he believed it was necessary to involve outside IT specialist providers.

Hugues who has a very wide range of experience assisting his clients in investigation situations stated that company ‘health-checks’ were on the increase because the tools are now available to take appropriate action (supported by legal advice) on the basis of the evidence that is found.  Hugues emphasized the importance of companies being ready and having a proper system in place to run internal investigations.  The robustness of evidence gathering was mentioned as a key point: any data being used for an investigation has to be correctly imaged in accordance with relevant data protection laws (which vary in each country).  The paramount importance of data being correctly captured, stored and managed emphasizes the need for expert external IT teams.

As the IT landscape continues to evolve, electronic evidence providers need to adapt their processes to be able to extract data from a wider and wider range of electronic devices.  To have the best chance of locating the ‘smoking gun’ early collaboration with IT providers is increasingly necessary.

Don’t miss our next webinar on 14 May which focuses on Dawn Raid Survival.  Practical tips will be discussed and shared amongst our panel of European experts including Dr Thomas Kapp (partner at Luther, Stuttgart), Julie Catala Marty (partner at Bird & Bird, Paris), and Rainer Ziener (Computer Forensic Consultant - Kroll Ontrack, Germany) so do join us again on May 14th!

Mobile Forensics – What should companies be doing?

by Graham Jackson on May 8, 2013 in Best Practice & Top Tips with No comments
Mobile Forensics

Mobile Forensics

Anyone who’s tempted by the ‘There’s an app for that’ message from Apple eventually succumbs to the lure of an iPad® or iPhone®, believing (usually correctly) that their home and work lives will be transformed forever.  But as the newer versions of Apple’s ubiquitous devices continue to take the personal and business worlds by storm, it becomes increasingly important to understand the unique way in which they retain and share information.  Companies need to be aware of the security risks they present and to keep in mind the evidence trails they create.  According to the Kroll Fraud Report information theft is one of the most widespread categories of fraud currently facing companies and it’s not just customer data being stolen but also internal strategic company data and internal financial plans or data.

What information can you get off these devices?

Most mobile devices use technology similar to that used on a personal computer. As a result, nearly any kind of file or program that can be saved and run on a computer can also be saved and run on a mobile device.  iPhones and iPads (and more generally, devices that use Apple’s iOS operating system) are capable of being forensically analysed.  Exactly what you can get out of them varies depending on the particular version of iOS, how the device is set up with regard to encryption and other factors. There are, however, specific technical approaches and forensic protocols applicable to the IOS (and Android and Windows mobile) environments and companies like ours have made investments in the specific hardware and software needed to keep up with the evolution of these operating environments.

The challenges presented by mobile forensics

The iPad features solid-state device (SSD) memory and, similar to the iPhone, manages data within SQL database files. This storage process makes it difficult to forensically retrieve deleted information from an iPad, because the data is essentially locked down, requiring forensic investigators to gain access to raw data in order to retrieve the deleted information.  For the iPhone and iPad, tools to carry out this process have only recently become available to forensic investigators. The majority of commercially available forensic tools for the iPhone and iPad perform a backup of selected data contained on the device. This results in the partial extraction of user data, but does not allow forensic investigators to recover the majority of the deleted data.  Forensic tools that do allow for the recovery of deleted data have only recently appeared on the market.

Of the many “apps” these devices run, some are harmless, fun and useful, and others are poised to turn traditional forensic investigation on its head.   For example Dropbox® allows users to upload files into the Dropbox app from their mobile device. From there, the app automatically copies the files onto the user’s online Dropbox account, which is accessible from any device with internet access, anywhere in the world. In the corporate world, individuals could use this technology to capture and transfer confidential information. Even if the activity is suspected and the device can be seized for forensic examination, data transfer methods like Dropbox are often easily overlooked and instead investigators turn to email and the use of removable media.  Furthermore, iPads are equipped with the same remote wipe function found on the iPhone. If a seized device is not properly isolated from its network, this highly effective function allows users to send their device a command to permanently erase its contents – stopping any forensic investigation in its tracks.

And all of the signs are that Apple will continue to improve the safety and security aspects of the iPad as it competes for market share with other vendors such as Samsung. Mobile forensics experts are already anticipating new challenges from the introduction of next generation devices and iOS 6.

What should companies be doing?

Powerful tools such as the iPad emphasise the need for companies to fully understand the capabilities of the technology they choose to implement. If misconduct is suspected within a company (whether that be the theft of information or the involvement of employees in fraud, anti-competitive behaviour or corruption) it is important to determine quickly whether the subject of the investigation is using a tablet or smartphone device such as an iPad or iPhone.  If so, and the company has the ability to seize or access the device it should be handled by an expert in mobile forensics.  These devices provide additional ways in which individuals can take proprietary information with little to no trace left behind and also new evidence trails that forensic experts can tap into to work out what has been going on. As the usage of iPads in the BYOD corporate environment continues to grow, they will continue to present challenges to information security and opportunities to forensic investigators that companies cannot ignore.

Electronic evidence in Continental Europe

by Andrew Szczech on April 22, 2013 in Pieces of Interest with No comments

Andrew Szczech - Kroll OntrackAs the first of our series of webinars about the use of electronic evidence in Europe is about to start (Tuesday 30 April), I thought it would be a good time to say a few words on the subject.  For our webinar series, we have been able to bring together a prestigious group of representatives of international companies and legal practitioners (along with our own e-discovery experts) to have an open discussion about how e-discovery technology is being used in Europe.  Given the calibre of the speakers, the discussions are set to be highly informative, and I’m very pleased to be moderating this discussion.

Having worked in this business for over nine years, we are seeing a number of ways in which e-discovery technology is assisting our clients in Europe.  Whilst the appetite for e-discovery technology here does not yet match that of the UK, or the US (the legal systems in Europe generally being of inquisitorial nature rather than adversarial) – electronic evidence still has an important part to play.

The main area in which we see the bulk of activity is (understandably due to the volume of documents involved) assisting clients to respond to EU competition investigations (both by local competition authorities and the European Commission).  These require a rapid response rate and the requisite experience to put in place the right strategy to deliver the results required.  However, in addition to responding to regulators, we have increasingly assisted companies to perform their own ‘internal audits’ in order to flush out any potential issues and deal with these (either through leniency applications to the authorities or even sometimes immunity) before any intervention by the authorities.  Another separate angle for e-discovery is that with the proliferation of different modes of communication in use today, from use of personal devices (iPads, iPods, Android phones and tablets) but also messaging systems (Reuters, Bloomberg, Instant Messenger, etc),  companies and law firms can benefit from the proper management of electronic evidence – whether this is helping to prevent theft of intellectual property, finding a key piece of evidence that supports your case, or simply checking that the business is running as it should.

Navigating the complex data protection laws in Europe when moving data across borders can prove challenging, but there are always practical approaches that can be adopted to overcome these obstacles.

I’m proud to say that our European team is growing, and that our new member, James Farnell, joins us a Legal Consultant for Continental Europe.  James is a UK qualified solicitor and will initially be working with us in Brussels and the Nordics.

I hope you can join us next week for the start of our European webinars series, Staying a Step Ahead of the Regulators, and will look forward to updating you on my next post.

ReInvent Law London

by Rob Jones on April 18, 2013 in Pieces of Interest with No comments

I have entered a competition to speak at the ReInvent Law London conference on 14th June.

Whether I get to deliver my presentation or not depends on whether I can gain sufficient votes on my proposed topic.
I need your help!

Change in legal practice comes in waves. “Wax Up”, Not “Wipe Out” is all about being brave enough and prepared enough to surf the biggest waves without falling off the board and to emerge successful, no matter what challenges present themselves.

Technology is a huge wave, still surrounded by myth, with too few experienced wave riders.

In my talk, I will aim to separate truth from fiction and explain how to ride the waves and this opportunity will help me to make an important niche topic more widely understood.

There are 25 fantastic candidates all seeking the same opportunity. Please vote for me and share this post with your colleagues, friends and family. Voting closes on 20th April and can be done at the following address:
reinventlawlondon.com/vote.html

Thank you!

Dawn Raid? Don’t Panic! – Top 10 Tips

by Tom Alexander on April 16, 2013 in Best Practice & Top Tips with No comments
Dawn Raids

The phrase ‘Dawn Raid’ conjures up images of dramatic drug busts with hordes of law enforcement officers battering down doors and descending on unsuspecting criminals and the mad panic as they try to escape by jumping from a second floor window.

A corporate dawn raid may be a little more composed, however the risks for companies are just as real. The surprise can cause people to behave unpredictably, especially when technology is involved.

The harsh reality of today’s difficult economic conditions means that companies are more at risk than before. They need to be prepared for unannounced visits from agencies such as the OFT, FCA, SFO or the EC.

Authorities will often have the power to question company officials and take away information from paper files, and also electronic evidence stored on personal computers, servers and other digital devices.

Here are my top 10 tips for dealing with a corporate dawn raid from a technology perspective:

Before

1. House in Order
Know where your data is: create a data map. Ensure compliance with a company backup policy and securely destroy old data outside of that policy. Keep individual data access to a minimum. Regulators can fine for poor data access controls so ensure suitable encryption exists. Conduct internal audits to uncover potential breaches. Finally, consider the implications of using personal devices for work purposes.

2. Be Prepared
Attend training on how to handle a dawn raid and conduct a mock dawn-raid to test the effectiveness of compliance procedures. Have you created Dawn Raid procedures and assigned a response team?

During

3. Inform Management, Lawyers & Advisers
Be polite to investigators and, if possible, wait for the lawyers to arrive to check the warrant or search order although depending on the circumstances there may be nothing to stop the investigators proceeding immediately. Enlist the help and advice of a forensic technology consultant to shadow the investigators to ensure that they stick to the scope of the warrant and following proper procedures. Handle communications within the firm to ensure there is compliance with the investigation and that your reputation is protected.

4. Know your IT Administrators
Get your IT people involved early on, to grant access to electronic data and individual custodians. Investigators might require Internet access, LAN access and USB access to install and run their forensic imaging software. Make sure that the tools they are installing are forensically sound and virus free. Passwords may also be required for any encrypted hardware, software, folders or documents.

5. Co-operate
Ensure all members of the company are aware of their legal obligations. Do not turn off computers as investigators might request access to Random Access Memory (containing passwords, clipboard content etc.) which would disappear upon loss of power. Protect any seals (e.g. tamper proof evidence bags, locks on doors) left by the investigators or risk hefty fines. Do not delete data – deleting data can leave a trace and lead to uncomfortable enquiries.

6. Negotiate
Business continuity is important. Is it necessary for whole computers to be seized or for servers to be taken off-line? Highlight individual areas of potential relevance and consider approaches to ensure known privileged documents are not seen by investigators such as sealing disputed documents for review by an independent lawyer.

7. Take Copies
Take copies of everything seized or copied or seen. This may or may not be possible during the course of the execution of the warrant. As a rule, investigators are obliged to provide a list of seized items but not copies. A forensic technology consultant will be able to assist you using forensic software to ensure that source data copied is not altered in any way and that crucial meta data remains intact.

8. Monitor
Have the investigators taken adequate steps to secure data to ensure data protection and data integrity? Are they taking documents outside the scope of the investigation or documents with privileged information? Are they using suitable software, tamper proof evidence bags and maintaining chain of custody? Are they creating an inventory of recoveries, clearly labelling data and avoiding cross-contamination? One of the most important things during the course of a raid is to take copious notes of what they are searching for and on which machines. This will allow a forensic expert to reconstruct what has been searched or copied.

After

9. Stay Ahead
Consider a further internal audit, in order to preserve more data than the regulator, which might strengthen your case.

10. Review
Use a legal technology provider to setup an Early Case Assessment database of all the documents seized by the regulator plus any further documents identified. Filter and prioritise documents for review using the latest technology to quickly assess the company’s exposure and asses it’s legal strategy for responding. In the race for leniency technology can help you work out what happened fast.

Final Thought

Dawn raids can have a significant impact on business, with the possibility of severe penalties and reputational damage associated with corporate wrongdoing. In addition to companies preparing themselves for a raid, the most prudent approach is to carry out routine internal audits to uncover problems ahead of a knock on the door from the authorities.

We Put the Pieces Together

by Daniel Kavan on April 8, 2013 in Legal Developments with No comments

This month marked the implementation of the Jackson Reforms. To help combat confusion within the legal community as to how the new civil procedure rules arising out of these reforms will work, we gathered up some of London’s leading litigation experts and thrashed out the key issues on cost management and disclosure in a breakfast seminar at Lincoln’s Inn.

The breakfast was extremely well attended, showing the legal community’s interest in the subject and in the esteemed panel which consisted of the court’s own Senior Master Steven Whitaker, Pinsent Masons’ litigation expert Andrew Herring, Hudson Legal’s director of managed review, Tom Moore, and Kroll Ontrack legal technology expert Rob Jones.

The Senior Master made it clear from the start that non-compliance with the rules would not be tolerated by the courts and sanctions could be expected. In this context we debated how the rules might work.

The panel agreed that standard disclosure would be less frequent, with parties more likely to simply disclose the documents they rely upon, and potentially provide further issue-based disclosure. Even though disclosure on this basis could be rather limited, the panellists didn’t think this means the end of the E-Disclosure industry. Rather, as Rob put it, a coming of age, where Legal Technology providers would be able to provide proper, strategic advice to practitioners carefully planning their disclosure exercises ahead of time.

ED providers would also be able to help with cost budgeting, which is now a requirement under the rules. Although the requirement to file a budget only applies to some cases, the need to budget for the disclosure exercise on the Disclosure Report (the form for which we unveiled at the seminar) would apply to most.

Listening to Andrew speak, it made me realise that these changes would clearly have an impact on litigators, but that actually many of the required behaviours are what good solicitors are already doing under the current regime.

You can listen to a recording of the whole seminar here:

I would like to personally thank the panellists, who helped me structure the session to focus on the aspects that mattered most to practitioners, and provided a lively discussion on the day.

Limber up for the Big Data Marathon

by Tracey Stretton on March 19, 2013 in Pieces of Interest with No comments
1389662_22069019

The Data Craze for Sports Fanatics and Lawyers

One of my colleagues has just run the Reading Half Marathon and I am expecting any minute to see his race stats published on Facebook.   Well done Rob Jones, a GPS time of 2:21:19.  Budding athletes and intrepid cyclists are downloading various  apps to their phones (like Endomondo Sports Tracker or apps.strava.com), relying on the information they gather to track distance travelled, time taken and  energy expended and using this to not only subtly show-off on social networking sites but also to plot and plan their race strategies. Of course, a positive spin-off is that the rest of us, having shared their pain and gain, feel inspired to do something similar and before you know it the data craze has turned into a sports craze and a new way of doing things. This phenomenon highlights how data can be transformed into intelligence, can inform decision making and strategy and possibly even have an unintended impact.  It got me thinking again about the influence that big data and predictive analytics is having on business and on the legal profession and how edisclosure fits into the picture.

Big data in business

Initially it was only big companies like telecommunications companies, banks and government agencies that could afford to store and analyse big data.  Thanks to advancements in hardware and databases you no longer need supercomputers to carry out complex analytics across large data sets.  Many businesses are finding that for a reasonable investment they can collect data and make it relevant to their business; by measuring consumer behaviour and using pattern detection they can respond to customer needs and market conditions and make data-driven decisions.   Supermarkets, healthcare providers, gaming companies, insurance companies and even florists are jumping on the bandwagon and tapping into the intelligence running through the big data stream and finding ways to monetise the data they hold.

But (and it’s a big but) what about law firms? 

Can lawyers, who have tended to shy away from technological innovation really harness big data to predict case outcomes and legal costs?   We know that big data can be exploited to predict the outbreak of diseases, but can it be used to predict the outcome of a litigation case?  In an interesting article by Mike Wheatley on Silicone Angle it appears that databases of legal history are being built up and algorithms are being developed to help predict case outcomes.  Apparently, companies are also developing mobile apps that predict the average legal cost of different types of cases in the US.

As we enter a new era of cost management in the UK and the need to stick to case budgets becomes more important, we will need all the help we can get to estimate costs and guess what impact variables like the number of witnesses or extent of disclosure might have, not only on costs, but also on the outcome of a case.  Of course the data that needs to be collected, analysed and correlated to make sensible predictions includes not just the key features and facts of the case itself but also the results recorded in subsequent court decisions.   When it comes to costs, law firms and e-disclosure providers are all holding a lot of valuable billing data that could be analysed to assist with cost estimating.   This might all be feasible but has not yet been done.

On the edisclosure front, data analytics has been used for some time.  We have had email analytic tools that can be used to visualize who has been communicating with whom, when and about what.  Similarly, Technology Assisted Review (TAR) (also known as Computer Assisted Review or Predictive Coding)  analyses decisions made by humans on a sub-set of documents, and then look for similar patterns in a much larger document universe to predict which documents are relevant to a case and top priority.    At this stage most of us know about TAR and some are testing the water. Here are some tips on analytics from the sports scene:

Sports analytics and the CIO: Five lessons from the sports data craze

Collect the right data to start with, both qualitatively and quantitatively.  In edisclosure this means targeting the right sources of data and is an area where experts can help.  Is it better to present a raw unfiltered set of data (to teach the system in a balanced way) or a set of results based on a carefully crafted search, or is that somewhat prejudicial. Until there are better statistics and more guidelines from real cases, the ultimate decision is likely to be a strategic one.

Start with statistically significant data.  This refers to the selection of your seed set of documents that will be reviewed by humans and used to train the prediction software.   You cannot expect the software to achieve peak performance on 1,000 documents.

Remember that the ability to contextualise data is important.  There are incalculable factors that come into play with prediction and this is where human quality control is vital.

Perhaps, as we use these predictive tools more in legal cases and share our practical experiences and results, their use will become widespread and a status symbol just like Nike + is.

Social Media: Not a Problem?

by Graham Jackson on March 11, 2013 in Best Practice & Top Tips with No comments
Social Media

We think we understand social media, it’s simple, right? It’s the medium whereby we create, share and exchange information and ideas in virtual social groups. However, like many organisations, I’ve never fully understood its place in the complex areas of our lives. We constantly hear that the work/life or the public/private boundaries are blurred in today’s society and there’s no denying that social media has had its part to play. To bring this back into context, I wanted to explore the increasing importance of managing social media as evidence.

Evidence is typically found within lines of communication, so it is inevitable that we will begin to see more lawsuits and criminal proceedings focused on social networking. However, whether you’re looking to request or disclose social media content to judge its relevance in litigation, or analyse it as part of an investigation, there are potential roadblocks that are likely to get in the way.

More often than not disclosure orders include electronically stored information (ESI) within the remit of what is to be produced. Typically this includes email, office based documents, data stored on mobile devices and now we begin to see requests for data stored in the cloud and content generated via social media. So, other than the obvious challenge of having to locate the data, imagine the time and internal cost of collecting and reviewing all of your employees’ computers and mobile devices. Now imagine expanding that to your company’s social media websites and then to each individual employee!

This is not to say that social media content is difficult to access. For example, the High Court has ordered Facebook on a number of occasions to disclose details of its users to identify them to assist in defamation claims. But is social networking content deemed valuable? Most give little thought to the consequences of their posts or blogs, but this is to the wrongdoer’s detriment, as social media is not exempt from disclosure in civil or criminal proceedings and, like any evidence, can be the smoking gun needed to prosecute.

So, we can’t escape it, social media is here to stay, in work and our private lives but what advice can we give when having to handle it? Most importantly, get control. Set out clear polices and regulate where your data is; inform your employees that social media is part of YOUR data control. Make it clear from day one that social media is discloseable and constantly remind your employees that policies are in place to protect your data, and what they post on Facebook or Twitter might come back to haunt them.

One Month Today: Getting Ready for Jackson’s Civil Procedure Reforms

by Daniel Kavan on March 1, 2013 in Legal Developments with No comments
Jacksons-Civil-Procedure-Reforms

Last week we posted an update outlining all the latest details of the new costs management rules and the e-disclosure menu of options coming into effect this Easter in England and Wales. The legal community has had mixed reactions to these changes, which are only a few weeks away and constitute a significant part of the implementation of the recommendations in the Jackson Review.  A quick Twitter search for hash tag #jacksonreforms  shows plenty of debate about the implementation.  Law costs draftsperson Timothy Phillips tweets, “the Jackson Reforms would be as easy to master (but more fun!) if they were published in jigsaw format.”

The Law Society Gazette reported that litigators think that the Ministry of Justice’s handling of new rules to support the reforms as ‘shambolic’ and ‘deeply concerning,’ not leaving enough time for practitioners to prepare.  But the Government has pushed back, and as PLC reported, it rejected calls to delay implementation.  Last minute changes to the amended rules which have exempted large-scale cases from cost management have had some wondering whether this should be the case.

But it’s not all doom and gloom. Some of the changes will provide more flexibility in the way litigation is carried out. For example, rather than standard disclosure burdening parties in litigation, the court will decide whether to dispense with or limit disclosure, or any other order the court considers appropriate.  An analysis of the implications on practice, by my colleagues Tracey Stretton and James Morrey-Jones in conjunction with Eversheds Partner Mark Surguy, was recently published by the Society of Computers & Law. It also suggests some great ideas about how cutting edge technology could be used to do disclosure upside down, by handing the keys to the warehouse to the other side and jointly training a machine learning system on what kind of documents are relevant, and then letting the computer sort through the warehouse and decide what’s relevant and what’s not.

The rule change certainly provides an opportunity to think about litigation and disclosure with a fresh mind. To that end, on Thursday morning, March 21st, I will be hosting a breakfast seminar at which Senior Master Steven Whitaker will look at what has changed and why and what the implications might be on a panel with Pinsent Masons’ edisclosure expert Andrew Herring, Hudson Legal’s Director of edisclosure Tom Moore, and Kroll Ontrack’s Rob Jones.  I would encourage you to come along, enjoy breakfast on me, and contribute to the debate or listen to what the experts have to say. You can find all the details and register here.

What’s your reaction to the reforms? Please comment below.

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