A good e-Disclosure conference will make you want to know more or, at least, will ring an alarm bell in due course. There are pitfalls to know about and practice development opportunities being missed.
I am just back from a conference in London organised by Marcus Evans with the title E-Discovery and Document Management Strategies. The fact that I was one of the speakers does not disqualify me from saying that it was one of the best I have been to.
I will write separately about the session which I shared with His Honour Judge Simon Brown QC and which was, as you might guess, about the scope which the CPR gives to willing parties and an active judge to bring down the time and costs of e-disclosure.
Nor will I here try and summarise what each speaker said – it would be invidious to pick out any of them in what was a well-balanced programme, Actually, I will make one exception and pick out Browning Marean of DLA Piper US LLP, who displayed his usual knack of giving a near-universal viewpoint which transcends national boundaries and applies equally to large and small cases. It comes down to knowing your stuff and anticipating costs.
Costs recurred as a theme throughout, and not just in the panel session specifically headed Controlling costs of E-Discovery through Preparation chaired by Janet Lambert of Barlow Lyde & Gilbert and comprising HHJ Simon Brown QC, Matt Grant of LexisNexis and Patrick Zeller of Guidance Software.
Some of the subjects were technical and the breadth of subjects covered allowed the audience to put the technical stuff into a practical context. You need to understand, at least superficially, what the difference is between a forensic and a non-forensic collection of data (with all the shades of meaning within those categories), and to weigh the costs against the benefits. Those costs and benefits only have meaning, however, in the context of an assessment of what is proportionate in terms of what you have to prove. As it happened, Judge Brown and I on the subject of proportionality followed immediately after Simon Clarke of Pfizer on collection strategies, so the dry words of Paragraph 2A.4 of the Practice Direction to Part 31 CPR (factors relevant to the scope of search) took on a practical meaning – these rules are extremely well tuned to the realities of collecting data.
Do you collect a full disk image of the drive or just the files you think you want? There are arguments both ways and there are tools and services to do either. How much money is wasted collecting everything when a more focused collection strategy would cut down the volumes before you even begin? Equally, what might you miss if you do not collect everything including the slack space (look it up if you don’t know what that means) and will it matter? And what non-cost factors arise if you keep everything – data privacy, data protection, privilege, users kept off their PCs whilst you do the collection, aggrieved employees or works councils and (nice one this) the resulting vast store of duplicated information which may not be disclosable in this action but, once you have kept it, may be potentially disclosable in another, unrelated, action?
It is not that every litigation lawyer needs to understand the detail of all this, but they do all need to have in mind what the range of possibilities is. What kind of case is this? What do I need to prove or disprove? What is the order of costs of one route rather than another? Who do I turn to when the problem arises? Conferences like this are a good way of adding to the warning bells which may ring – you often do not get a second chance to collect some data at all, let alone to do so at a time and in a way which informs your subsequent decisions.
One of the comments one hears about these conferences is that they are perceived to have a heavy foreign bias – what relevance do the FRCP Amendments have to my client’s case? Why should I care what happens in Frankfurt? Much purely local litigation, it is true, can proceed with that insularity for which the British are famous. But you look at all these companies which own or are owned by US companies, and you see all these firms who claim to be part of a network of European firms working for (one presumes) European businesses, you have to wonder at two things: what pit might you drop those clients into next week? And what practice development opportunities are you missing? E-mail is a global medium and its implications need to be addressed globally.
We were given a lot of statistics. Perhaps the one which stands out is that, whilst 80% of businesses appreciate the need for a strategy to handle the growing amounts of data, particularly e-mails, 74% of businesses have done little or nothing about it. Throw in a statistic which I gave the audience, from a recent US survey which showed that one in five US businesses had settled litigation to avoid the costs of compliance with the US Discovery rules. Together, these numbers mean that business decisions are being taken for what appear to me to be the wrong reasons. If it matters that you have to decide against bringing a claim, it can matter more that you have to settle one brought against you. Furthermore, you do not then have the luxury of getting your house in order in your own timescale.
Conferences like this are tasters – you pick up bits of information which at best help you decide to find out more and which at the least trigger a client-saving thought when the issue arises. This was a particularly good conference at both levels.
Do get in touch if you want to discuss anything which is mentioned here or on the conference programme.