Like ice-hockey, e-disclosure requires some equipment and some skills. You don’t need to be a genius, merely competent, and you can delegate the technical skills to others. You are on thin ice if you approach litigation in 2009 without the resources to play the game properly
Those who come and see me here in Oxford generally get taken on a route-march round Port Meadow with the dog. Ideas and thinking seem to come more easily out there than around tables, in conferences or at bars, which are the more conventional venues for discussion.
The Meadow varies with the climate: sometimes it is a green, grassy field, sometimes a dusty prairie, often a large inland sea. Today it is an ice-rink, with people playing ice-hockey on it.
They showed an easy grace as they floated around the field, and I assumed that they were Americans. This is not because Americans are inherently better at ice-hockey than we are but because their culture and facilities encourage it. We tend to assume that they are good at it.
Much the same is true of the UK perception of electronic discovery. It is something Americans are intuitively good at, we think, and most UK lawyers are happy to leave them to it – let them whizz along on their technologically-advanced equipment whilst we manfully skid and slip about in our sensible shoes (aka the word-processor and photocopier).
The problems – a slippery surface in one context, and too many documents to read, costs pressures, and court rules in the other – are the same in both jurisdictions and the technology is the same everywhere. The difference between the two litigation practices is the same as for ice-hockey, to do with culture and the availability of resources rather than any innate skills. It also has much to do with practice – you can only expect to stand up on ice, let alone race about on it, if you take some time to get used to it and work at being good at it.
Hockey players are, as it happens, one of the groups which Malcolm Gladwell considers in his latest book Outliers, which examines the factors which contribute to success – to be “outlier” is to be visited by great success thanks to a combination of circumstances and serious practice. The specific context (the birth-date of the majority of successful hockey players) has no bearing on my e-disclosure parallel, but one of Gladwell’s recurring themes is that whatever advantages are given to the stars in any field, success came from hard work – the Beatles may have been men of genius but they had performed live roughly 1,200 times before success came in 1964.
Gladwell is concerned with superstars, and most of us do not aspire to that status in the hum-drum business of handling electronic documents – doing it accurately and at a cost which satisfies both the client and firm’s finance director is target enough. We do not aspire to be outlier in the conduct of litigation, merely competent and profitable. The point is that we cannot expect to leap into electronic disclosure by acquiring some technology any more than we can expect to become ice-hockey players by strapping on some blades and running onto the ice. Without some serious hard work and practice you will fall flat on your face.
The resulting skills, however, are what you are selling when you purport to conduct litigation in an electronic world. The required ability is not in fact to twirl on the ice yourself but to choose and manage those who will do it for you and to equip them properly. Those who approach litigation in the post-recessionary, post-Digicel, world without such a team do so on ice which not merely slippery but thin and they will be left behind as others race past.