The odds on gaining improved information management from the recession are better than those on offer for Peter Mandelson’s resignation before the next election. The war to tame the information needed for litigation and regulation, like other wars, will breed new tactics and technologies
My article What will recession do for civil justice?, which I published last Friday, brought together subjects as diverse as the agricultural depression of the 1870s and Peter Mandelson’s attachment to rich foreigners, in the context of leadership and the role of judges in the recovery which will come from the attrition of recession. My theme was that as lawyers and judges sort through the wreckage of the old economy, there may be an opportunity for business practices to take a leap forward. Specifically, I suggested that the time and expense of handling the litigation which has suddenly become a non-optional part of corporate strategy might prompt companies to reappraise how they manage the information whose volumes will prove the biggest single source of expense in litigation. The courts will have a hand in shaping how important that seems next time round.
The Times kindly illustrated some of my subjects in Peter Brookes’ cartoon on the following day. The title was “Tools of the Economy” and four pictures showed in sequence a horse-drawn plough, a fork-lift, a big yellow digger – and Gordon Brown, with Darling under his arm, being dragged in a handcart by an ermine-clad Lord Mandelson past a sign pointing to Hell one mile away.
The Times, Saturday 25 October
I missed the chance to go down to William Hill and put a tenner at 10 to 1 on Mandelson resigning before the next election. The 8 to 1 now on offer still looks tempting. William Hill does not have a book running on a prediction which I made at the New Year to the effect that a judge would strike out a statement of case for failure to comply with the obligation (in the Practice Direction to Part 31 CPR) to discuss electronic sources of documents. I do not in fact think it a good idea that they should – yet – but we moved a step closer last week to closer judicial intervention in this aspect of case management with the order in Digicel (St Lucia) v Cable & Wireless which I reported on Saturday (see Case law at last on scope of reasonable search)
What connects outdated farming methods, information management, betting on certainties, and judicial case management?
It is clearly not true to say that business has failed to invest in information technology. The last decade has been one of unparalleled spending on systems to create, capture and store information of all kinds. Similarly, the 1850s and 1860s saw high levels of investment in farming, boosting both the quality and the output of British farms. The economic context had changed however. Cheap foreign sources of food, aided by a revolution in marine transport, caused prices to drop. This was not an invisible pressure, but farmers continued to act and invest as if a return to prosperity was just around the corner. By 1874 the knock-on effects had spread to every corner of the economy – a few streets from me in North Oxford, for example, the outward spread of new house-building, near-continuous for 30 years, stopped in mid-street for nearly a decade.
The parallel with the modern growth of information is not exact. Our problem is not that we cannot sell or consume our surplus or that foreigners are producing it more economically, nor is the present economic crisis a product of over-investment in, and over-production of, information. Our problem, in the context of which I write (and preserving the agricultural analogy), lies in sorting the wheat from the chaff. The parallel lies in the resolute refusal to recognise that we are drowning in what we have been so good at producing.
If the economic crisis was not caused by the overload of information, it is certainly going to expose it. The origins of the financial debacle will provoke waves of new regulation. Its consequences will engender a flood of litigation over such assets as remain, and in battles to blame anyone who might contribute to the losses. Many companies, most lawyers, and nearly all courts will be fighting these 21st Century wars with tactics, machinery, processes and mindsets from an earlier age.
Having switched my analogy from farming to war, I will stick with it. Britain began both the great wars of the last century on the back foot in terms of military, industrial and financial preparation. The first big encounters with the enemy involved brilliantly-executed but bloody retreats – Mons and Dunkirk respectively. In information-management terms, we go into this recession similarly equipped and can expect bloody noses as a result to begin with.
Both wars were characterised – and ultimately won – by a slow but steady improvement in the methods, tactics and technology used to fight them. If that sounds too weighty a parallel for the relatively inconsequential fight to control information, well, that is the war with which my readership is concerned and it seems big enough for them. We will, gradually, arm ourselves better to fight proactively the individual battles – the document-heavy cases, and the inquisitions of regulators and investigators. In parallel we will plan to try and ensure that this does not happen again – the equivalents of the Casablanca and Yalta conferences will be work to ensure that new systems and processes within companies, law firms and courts do not allow us to get caught on the hop again.
Yes, I know there are limits to the parallels – the post-war worlds were in neither case quite what had been hoped for, despite ultimate victory. Nevertheless, both periods of turmoil gave rise to significant technical, military and social improvements. We can hope for the same in the way businesses manage their information, lawyers manage their litigation, and courts manage their cases.
What are odds on such an improvement? Rather better, I think, that those on offer for Peter Mandelson lasting in office to the end of this government. Of course, those calculations may be thrown by an unexpectedly quick end to the government. I would be happy to lose my tenner to William Hill if that was the reason.