Giving your predictions for the year at the end of April is a bit like going to the bookies as the Grand National field crosses the Melling Road for the second time (not that that would have done you much good this year). Looking more closely, I see that the edition of Legal Technology Insider which hit my In Box this morning is that from January, and I can see from the header that it was indeed sent on 23 January.
That would pose an interesting conundrum for a lawyer examining the metadata in his opponent’s electronic disclosure, especially as I got the January message in January as well. I suspect that a Gremlin has intervened as an ISP somewhere along the line restored an old backup.
Nevertheless, as I read it with a growing sense of déju vu, I came across an article I missed on my first reading. It was by Simon Price of Recommind and was headed Dinosaurs and trolls in 2008. I am seeing Simon Price on Thursday, so I thought I ought to read it.
Simon makes eight predictions, all of which, unsurprisingly, play up Recommind’s strengths – keyword-only searches will be replaced by something more sophisticated, enterprises will preserve only the data they need for legal, compliance or business purposes, good enough search will no longer suffice, enterprise applications and litigation support platforms will get hitched and so on.
All good stuff and objectively true as well as being in line with Recommind’s own well-established place in the market. The two which caught my eye in particular, however, both relate to anticipating litigation.
Simon suggests that we will see an increase in frivolous claims by opportunists – “EDD trolls” he calls them – who know that many large companies are unprepared to meet the new rigour of e-disclosure management by the courts. Simon refers only to the FRCP requirements in the US and, back in January that was probably fair. Since then, we have seen the start of the trial of the procedures suggested in the Commercial Court Recommendations, and the wider initiatives which I am promoting, particularly with HHJ Simon Brown QC in Birmingham. You don’t need to be in a US court to find that the judge’s expectations – and the other side’s scope for running rings round your disclosure – exceed your capacity to cope.
The second relevant prediction is that we will see more centralised remote access legal holds, the ability to surgically identify, preserve and collect ESI remotely, without having to send people out to image each custodian’s laptop/desktop and entire drives as Simon puts it. Having spent a jolly Saturday writing a White Paper for Project sponsors Guidance Software, whose EnCase product does just that, I am rather full of this subject at the moment.
There is more to this than just selling software. That word “surgically” which Simon Price uses is taken from the Commercial Court Recommendations, and describes the approach which UK courts are now taking to cut down the volumes of material put into play in UK litigation. You need technology to solve the problems which technology has created, and the place to start is with collections.
These two predictions come together in facing the new rigour of the UK courts. The kind of preparedness which is covered by the second – surgical collections – is the way to meet the threat of the EDD trolls covered by the first.
Recommind were the Technology Implementation of the Year (with Field Fisher Waterhouse) at the Legal Technology Awards 2008. Just as important is the endorsement they carry on their web site from my friend Browning Marean of DLA Piper US LLP. Browning says the ability to find and preserve potentially discoverable documents is critical to all of our enterprise clients.
I would argue only with the limitation to “enterprise clients”. The same is true of anyone litigating in UK courts who has any significant volumes of electronic documents. The way to beat the EDD trolls is to be ready for them. It is said that one US business in five settled or avoided litigation last year for fear of having to comply with the discovery requirements of the FRCP Amendments. The approach which we are taking in the UK is that litigation and the courts should be the servant of the business not its master. More accurately, perhaps, they should be thought of as a resource to aid commercial dealings. If you want the courts to help, however, you must play by their rules, and their rules include an obligation to co-operate with opponents and the court to keep down the time and expense of litigation.
You cannot do that if you are not ready. And if you are not ready, the EDD trolls may get you.