Ignorance of mainstream technology may cost you

Internet telephony, like litigation technology, is now accessible and affordable. Ignoring VOIP merely passes up the chance to cut your telephone bill. Ignoring litigation technology may cost you rather more. The problems, and the solutions, are the same everywhere

A male who bought his first PC shortly after they first came on the market and who has been a software developer might be regarded with some suspicion when he tries to induce others to use technology. You could look at it the other way, of course, and reckon that if someone imbued with office computer technology since its infancy still finds some of it near-magical in its power, then it might be worth a look.

This was brought to mind by two phone calls I received in close succession across midnight on Saturday. At that time of night it is the middle of the day in West Coast America and early morning in Victoria, Australia. My first call was from Browning Marean of DLA Piper US LLP in San Diego and the second was from Geoffrey Lambert of KordaMentha in Melbourne. Both were by VOIP (Voice Over Internet Protocol) and the total of two hours’ crystal-clear conversation with opposite corners of the world cost none of us anything.

I am old enough, just, to remember the introduction of Subscriber Trunk Dialling in 1958. Before then, every call had to be placed via an operator. Most houses had a single telephone, usually in the (not then centrally-heated) hall, with an uncomfortable chair and an uncomfortable sense that every minute’s conversation, even a local one, was costing a lot of money. Now I can chatter away in comfort for hours to the ends of the earth for free. VOIP is not new. What is relatively new is that anyone can use it on standard equipment and that it just works, without needing to understand what an Internet Protocol is or knowing anything about the technology.

You need a motive, of course, to talk for two hours in the middle of the night, even if it is free. In our case it was part of a continuous process of assimilating and spreading knowledge about electronic discovery – who is developing what, who is selling or buying, what topics are topical. Browning Marean’s message was that the Digicel case – Digicel (St Lucia) Ltd v Cable and Wireless plc – is attracting interest in the US. There are many there who are beginning to wonder if the UK approach to disclosure – which relies much more on judicial management of proportionality than generally happens in the US – may not have some merits. Digicel shows a judge rolling up his sleeves and getting stuck into the detail.

Geoffrey Lambert had just come in from an all-night job – no mere theorist he. The Australian electronic discovery market is moving, driven not so much by court pressures or sophisticated software or aggressive selling but by the commercial imperatives of the clients. The courts, the lawyers and some of the suppliers may, one senses, struggle to keep up. In the UK, it is debatable what will happen first – a recession-led flood of cases driven by clients, a rush of Case Management Conferences driven by lawyers and judges who have just discovered the Practice Direction to Part 31 CPR thanks to Digicel, or a stampede by lawyers who have read Hedrich v Standard Bank and fear that they may be the next ones on the receiving end of a wasted costs application for fouling up disclosure.

What happens in one market does not necessarily dictate what happens in another. The world is a smaller place than it used to be, however, and not just because I can speak easily to San Diego and Melbourne. The same problems are arising in each of these jurisdictions, and the same solutions – rules to a similar purpose and identical technology – are available to meet the parallel issues. On the previous evening I had been working to set up an initiative for interchange of ideas between UK and Canadian judges. If we can pool all the ideas and information between all these common law jurisdictions we can at least make sure that none of us reinvents the wheel in procedure terms.

Americans like to think that they invented electronic discovery, and some are aggrieved to find that our Practice Direction to Part 31, which deals with electronic documents, pre-dates their FRCP Amendments by over a year. Many in the UK (those who are no clearer themselves as to the PD to Part 31) are content to see it as an American invention and wish, as with tobacco and Big Macs, that America had kept it to itself. That approach is to treat e-discovery as if it were a procedural imposition, a problem artificially wished on them by rule-makers. It is not. The rules are part of the solution, not the problem.

Our Prime Minister, in his clunky, plodding way, is also keen on the idea that America is to blame for anything he cannot cope with – “It started in America” has become his standard answer when anyone suggests that he might take some share of the blame for the mass redundancies, business failures and foreclosures of recession. This self-deluding answer – that plucky little Britain, with hero Gordon Brown at the helm, built an international economic miracle which America has now screwed up – parallels to some extent the view which some UK lawyers have about electronic discovery. We gave the ungrateful bastards the basis for a fine common law system, they say, and they ruined it with their bloody e-discovery.

The reality, of course, is that the technology which gave us the means of production of all this electronic material was very much part of the economic miracle in London as well as in New York, Sydney and Toronto. In neither global economics nor the technology of document creation was much thought given to the accumulating problems inherent in the growth. The problems have come home to roost together and everywhere. Blaming the US for the expense of handling e-disclosure documents in London’s courts is akin to blaming it for the recession in London’s markets. In both areas, the fact that the US was hit first merely gave them a head-start in addressing the resulting problems.

If the problems are international, then it makes sense (in e-discovery as in global finance) to pool information and ideas internationally, to detect the trends and to compare the solutions developed in each place. That is what we are trying to do with our cross-border discussions.

There are many lawyers in all these jurisdictions, even the US, who are tackling disclosure with methods and technology which belong to another age. It is like conducting communication as if subscriber trunk dialing had not been invented. I said of Internet telephony that “it just works”. No great technical skills are required nor any great investment. Much the same is true of the technology available to tackle electronic disclosure, pro rata, at least, to the problem to be solved.

Had I used a conventional telephone, my conversations with the US and Australia on Saturday would have cost me £13.00 at standard BT rates. My only outlay dedicated to Internet calls was the headset which set me back £14.00, so I would have nearly recouped the investment with two calls. Without the technology, it is unlikely that I would have made the calls at all. I also got, as it happens, a higher quality line that I had in a conventional call from Australia earlier in the week.

Anyone who engages in litigation with any reasonable volume of electronic documents ought at least to make the comparisons – how will you handle the documents by conventional means, how might you do it electronically, and what are the respective costs of the two approaches? As with my telephone conversations, would you engage in that litigation at all if you had to do it without the technology solution? Might the solution be of a higher quality? It is not, of course, free, as my calls are, but you have to add up all the costs you will incur anyway before you can weigh one method against another.

The lesson from the Digicel judgment is that the courts will now make you do this exercise where the volumes exist. The lesson from Hedrich is that you might find yourself on the wrong end of a wasted costs order if your approach to disclosure is less rigourous than the accepted standards suggest. The two cases together raise the bar for assessing what is an accepted standard.

Go and look at some of the technology solutions. They have changed beyond measure in the last couple of years, driven largely by US cases which emphasise the duty of the lawyers charged with discovery. Ignore, if you will, my patent enthusiasm for it all, and ask yourself if you could now properly take on a big case by the means you presently use to comply with the disclosure obligations in Part 31 CPR and its Practice Direction. Like VOIP, they are now mainstream applications whose technical functionality requires no corresponding technical prowess. They just work, and make it cost-effective and practicable to do something which is otherwise prohibitively expensive. Ignorance of the solutions, like ignorance of the PD to Part 31 CPR, is no longer acceptable.

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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 Australian courts, Case Management, Court Rules, Courts, CPR, Discovery, E-Discovery Suppliers, eDisclosure, eDiscovery, Electronic disclosure, FRCP, Legal Technology, Litigation, Litigation costs, Litigation Support, Part 31 CPR. Bookmark the permalink.

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