Guidance on the Human Factor in eDiscovery

My first port of call in New York last week was Patrick Burke, Assistant General Counsel at Guidance Software. I did a webinar with Patrick over Christmas (Americans don’t really do Christmas I discover – the last e-mail in on Christmas Eve came from Patrick, as did the first one of Boxing Day) and it was good to meet him at last after the hours of discussion we had about that.

I first came across Guidance Software at the IQPC conference in London last May, when Victor Limongelli (now CEO of the company) gave a talk which impressed because of his sure grasp of the UK court rules. Regular readers will know that I focus closely on the matching roles of rules and technology as weapons to keep the costs down, and it is rare to find any supplier, still less a US one, who articulates that viewpoint.

Patrick Burke is similarly keen on that linkage, and my contribution to the webinar was to bring a UK angle to a discussion about getting an early grip on discovery. Patrick Zeller, Deputy General Counsel at Guidance, was the only US panelist at the Marcus Evans conference which I spoke at in January, joining an otherwise all-UK team to discuss how to contain litigation costs.

Guidance Software have since become sponsors of my E-Disclosure Information Project, welcome as much as anything for their genuine interest in developments in the UK litigation and regulatory scene.

Patrick Zeller was the Moderator at the only Keynote Presentation which I attended at LegalTech this year. His panel comprised Thomas Lidbury of Mayer Brown LLP, Andrew Drake, Senior Counsel of Nationwide, and Pallab Chakraborty, Senior Manager, IT Litigation Support, at Cisco Systems. Their subject was Overcoming the Human Factor: technology solutions for the records management and e-discovery dilemma.

The human factor is often the point of weakness. Matters discussed included the risks involved in leaving data collections to the users, the gaps which may open up between in-house and outside counsel, and flaws in the implementation of a legal hold.

The two in-house speakers, Drake and Chakraborty, were strong on the subject of retaining control of at least the early stages of litigation readiness (“outside counsel may know about my storage sub-systems but not know how our humans work” said Drake). Chakraborty observed that a company which handled its own litigation readiness as a general matter was better able to ensure cost-effective re-use of data compared with outside counsel who were focused on the immediate case. “A company should set up its process and not be pushed around by outside counsel”, he said.

This ties in with the predictions which I and others have made as to likely developments in the UK. The reality, I hope, will be a joint effort, with a whole new practice area opening up for UK lawyers willing to get up to speed on the stages prior to the actual onset of litigation. The decision as to when to start capturing the historic data which may prove critical to prospective litigation, and the practicalities of doing so, require both sets of lawyers to be involved.

The penalties for getting it wrong, especially in the US, are high. Technology is a vital component, but the timing, the scope and the methodology are down to human beings. The speakers referred to recent cases – the defendants’ legal hold arrangements in Wachtel v Health Net were described as “utterly inadequate” – this was actually one of the mildest court comments on the Defendants’ discovery in that case. There was “lack of specificity” in Samsung v Rambus. These were human failings.

We do not have the same codified concept of a legal hold in the UK, but the absence of formal sanctions does not let parties off the hook. The focus on court sanctions and on the procedural implications of having destroyed documents which should have been kept tends to obscure more practical things – whether you have inadvertently deleted documents which might have proved your case or whether you cannot find them in the unclassified mass of other documents, the effect on your ability to litigate is the same.

Patrick Zeller turned to the informed involvement of judges in managing the discovery process – a subject close to my heart. He referred to the excellent Pocket Guide for Federal Judges (I want to produce something similar here) and emphasised the need to get judges involved in the discovery process. They were, he said, receptive to this. It is far from the case (and I cannot stress this enough) that US judges are uniformly clued up on matters of technology, still less that no UK judges are. Ours are, it is true, expected to pick up their knowledge on the hoof but there are many who do just that, especially in the Commercial Court. The problem is that the difficulties of large document collections, and the technology designed to deal with them, advance at a rate which even industry insiders find it hard to keep up with.

I had to leave before the end of this session, so I cannot record its conclusion. It was stimulating stuff and perhaps I should have gone to more such sessions – but LegalTech offers you more than you can fit into the day, still less actually absorb.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Case Management, Commercial Court, Court Rules, Courts, CPR, Discovery, Document Retention, E-Discovery Suppliers, eDisclosure, eDisclosure Conferences, eDiscovery, FRCP, Guidance Software, Legal Technology, LegalTech, Litigation Readiness, Litigation Support. Bookmark the permalink.

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