Discovering what to do about e-disclosure

The paucity of blog postings recently does not imply that there is nothing to write about On the contrary, there is too much going on to stop and write it all up. A quick summary of what has come up in the last couple of weeks gives you some idea of what the E-Disclosure Information Project does.

First, a recap on what it is for.

The broad idea is to promote understanding of e-disclosure by acting as a link between all those who have an interest in e-Disclosure – corporations, practitioners, suppliers and the courts. The expression “to have an interest” does not necessarily imply actual overt expressions of interest, nor even a recognition that the subject is of relevance.

After all, Kroll’s ESI Trends Report of February 2008 suggests that only 29% of companies are fully aware as to where their potentially disclosable corporate data is held. This may seem a statement of the obvious, but that means that more than 70% could not easily lay their hands on what is needed to comply with disclosure or regulatory obligations.

Nor are many lawyers really in a position to help them once you get outside the biggest firms. We hear of firms deciding, as a risk management matter, that they cannot properly engage in heavyweight e-disclosure exercises, still less advise their clients on long-term planning for them. That is a lot of business going begging.

Judges can see the result because their courts are where all the dirty linen is exposed – an analogy I first heard from a former Chief Taxing Master who said that he was uniquely placed to see what was spent and wasted on disclosure because he saw all the bills of costs. The same is true of judges who see more CMCs than any practitioner.

Suppliers offer a wide range of solutions, some better than others (I mean that the manner of making the offers varies in quality as well as the solutions themselves). It is not easy to describe technical functions and benefits to an audience which is itself uncertain of the target they are aiming at.

I certainly do not claim to be better than any of these people in their discrete areas of expertise. My role is standing between them all and trying to encourage each to move in sync with the others, trying to close the gap between lawyers seeking orders and judges making them, clients wanting advice and lawyers giving it, would-be buyers of solutions and those who sell them.

It is partly an educational role and partly an information exchange. What does it boil down to in practice? What do I do to meet the objectives?

Going back over the last two weeks, I went to a meeting of the Commercial Litigators Forum to hear three Commercial Court judges make it absolutely clear that they intend to get a grip on the management of cases, including e-disclosure, and that the principles would apply in other courts. I wrote that up here.

The following day, I took part in a live video webinar for LexisNexis. I spoke on e-disclosure developments from the perspective of the Rules and of the changing court practice – as illustrated by the previous evening’s session with the Commercial Court judges. The other speaker was Colin Passmore of Simmons & Simmons, the author of Passmore on Privilege, so I am keeping good company.

The webinar is a useful way of spreading information. Video and audio technology, like web sites and blogs, provide an immensely useful way of extending one’s reach. I recently read a persuasive article in an Oxford University magazine about the benefits of old-fashioned podium lectures in the age of more technological means of delivery. There is room for all of them.

On Friday I spoke at a conference organised by CLT Conferences at the Café Royal in London. One of the delegates had been at the talk in Birmingham with which HHJ Simon Brown QC and I kicked off this information initiative. He was not the only one, he said, who had left that session convinced that the time had come to get to grips with e-disclosure.

I went last night to the opening of LDSI’s new premises off the City Road, following my visit to their New York office last month. The sheer fire-power of copiers, printers and scanners is pretty impressive, as is the overt dedication to process – not just the workflow of scanning, coding etc but the business of recording instructions and tracking the movement of source media. I asked my usual question – how does all this scale down to the needs of mid-sized firms, smaller cases and less experienced users? It does this well, I was told – more on this in due course.

What else is involved in getting and keeping this subject on the agenda? There are sponsors, would-be sponsors and other interested people to liaise with, both those I know and those who approach me out of the blue. Some are introduced by others whom I know; some find this blog and want to know more. Many are in the US which extends the working day somewhat and, indeed, the week – one rang me at about midnight on Saturday for a wide-ranging discussion, which sounds sad on both our parts but which suits me.

I am involved in four planned e-disclosure conferences this year and a forthcoming regional programme for the Law Society, in addition to the two which have happened already. They take differing amounts of input – two of them involve merely throwing in my views when asked and, in due course, the preparation of slides and the actual delivery; one involves a periodic committee-by-telephone, including a good chunk of today. One, for CLT Conferences, gives me the opportunity to design a full day’s conference from scratch and find the speakers, with the challenge of fitting a concise and practical set of talks into a day. It must say something new to those who have some experience of e-disclosure whilst introducing the topics to those starting from the basics. It is a non-trivial task, not least because I want to run a cohesive theme through several sessions, and this involves liaison with all the speakers. The conference takes place on 18 June.

As a rough rule of thumb, it takes me at least as long to write something up as to attend it, which is presumably why no-one else does it. Much of the intervening time has been taken up with writing and reading up about things. What things? Part of the issue here is that there is too much to know, whether you are a buyer or a seller, a party or a judge. It is not the individual product details which matter but the trends:

  • technical trends like growing integration between one type of product and another
  • legal trends such as what the ripples are from a case (not UK cases, of course, we don’t have any of those – yet) or judicial pronouncement
  • methodology trends like the changing balance between in-house and out-sourced ways of getting the job done
  • business trends like the growing realisation in businesses that if they don’t get on top of their electronic data in their own time, their lawyers will do it for them in theirs

You cannot read it all, nor is it helpful to try, but you can try and catch some of what passes by and distil it down to things relevant to those who engage – or who want to engage, or who ought to engage whether they want to or not – in a business activity on which vast sums are spent, and wasted, each year.

There is more to this than just reading. You have to go out and meet people, both those who know what they are doing and those who don’t but know they should. There is the bonus that it is a sociable industry with some nice people in it whose conversation I enjoy. “I hadn’t expected you three to be the last to leave” said our host at an event this week, as a polite way of trying to get us out of the door.

Meeting the unconverted is just as important, and not just to talk at them about e-Disclosure – I can do that ad infinitum with the slightest encouragement, but it is useful also to find out what they see as the bars to entry. It often comes down to not knowing where to start – which perhaps suggests that the suppliers need a different way of describing what they are selling. There seems, at least, a growing awareness that something must be done if litigation is not to become a game only for the very rich, plus an understanding that the monster which technology has created for us can be tamed by technology.

What is on next week’s agenda? There is a long-booked telephone conference with a US software supplier, a meeting and lunch with another and dinner with a third. All have solutions which ought to interest the UK market. Stephen Mason’s well-regarded book Electronic Evidence – Disclosure, Discovery and Admissibility has landed on my desk for review. And there is a mass of writing to do.

If you want to know more about the E-Disclosure Information Project, or to talk about how you can set about litigation readiness, prepare for a Case Management Conference, train your fee earners, or any other aspects of e-disclosure, please contact me.

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, eDisclosure, eDisclosure Conferences, eDiscovery, LexisNexis, Litigation Readiness, Litigation Support. Bookmark the permalink.

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