I had a patch recently when I had no time to write for a few days. Someone sent me a message, not exactly complaining, but making it clear that my apparent dereliction of duty had been noticed. It is not in fact a duty, or does not feel like one, and there is no shortage of things to write about. There is plenty else going on as well, however, and I cannot simultaneously do things and write about them.
Besides, the subject-matter of the article which sat at the top of the blog for a few days warranted the extra exposure before the next one took its place. It is called Fannie Mae – be careful what you agree to with e-discovery orders and concerned the lawyer in the US Fannie Mae litigation who agreed on behalf of his clients to discovery obligations which cost them $6 million (9% of their turnover). His clients were not even a party to the litigation. The outcome ought to suggest to any lawyer involved in disclosure applications that it might be helpful to scope a project before committing your clients to it. It is a suggestion as useful in the Birmingham Mercantile Court as in Washington D.C.
I roughed out a diagram recently which showed the discrete activities and initiatives which are in hand at the moment. It showed a dozen or so things which connect to or overlap with each other and with which I have some involvement ranging from full-on activity to peripheral interest. They constitute my excuse, if such were needed, for not having had much time for writing recently. More positively, they amount together to a set of initiatives with the potential to make a real difference to the way electronic disclosure is handled.
At the centre of my diagram are the UK-based speaking engagements. Last week we finished the planning of the resumed tour of UK cities which I am doing on behalf of the Law Society. Sponsored by Legal Inc and Millnet, this involves a two-hour session in which I cover the UK disclosure rules, the problems which must be handled, and the solutions which exist to deal with them proportionately. I did this last year in London, Leeds, Manchester and Bristol. The resumed tour begins with London again on 9 March, and takes in Nottingham, Liverpool, Birmingham, Cardiff, Newcastle and ending in Sheffield on 17 June.
These will now include a show ‘n tell element following the reaction we got in Birmingham last year when I got suppliers to illustrate the various components of the e-disclosure process. I have been invited to do a similar session in Bristol in February under the auspices of the Western Chancery and Commercial Bar Association. That too has taken a certain amount of organisation and time.
My article reporting on the Birmingham event anticipated that Lord Justice Jackson would devote a part of his forthcoming Litigation Costs Review to the costs of e-disclosure. This is indeed his intention, and I have been giving such help as I can to Alison Potter of the Jackson team, mainly in the form of introductions to a broad range of people whose different viewpoints may be useful. Her brief includes both Mercantile Courts and e-disclosure, a fortuitous conjunction given that the e-Disclosure Information Project began in the Birmingham Mercantile Court. There, HHJ Simon Brown QC sees the management of e-disclosure as key to making his court an efficient place which people would choose to litigate in. According to the Small Business Association, small businesses employ fifty eight per cent of the private sector workforce, contributing fifty per cent of UK GDP. The Mercantile Courts are the obvious place for them to take their disputes. There is much more at stake here than mere rules and technology.
From Birmingham to the world. Lord Justice Jackson’s terms of reference include surveying the costs regimes in other jurisdictions. It was on my agenda for 2009 to do the same in the narrower area of electronic discovery. All the common law jurisdictions in which discovery/disclosure of documents is the norm have messages, lessons and thinking which are relevant to what we do, and we think that the UK principles and rules – if not yet the practice – may be of interest to them. “We” in this context is a loose combination of people, overlapping circles which include members of Master Whitaker’s drafting group charged with producing a Technology Questionnaire and Practice Direction, litigation support managers, judges, suppliers and those of us who write about e-disclosure and speak at various public conferences.
That is a sub-set of an international group of people with parallel interests in other places. I correspond and speak with people in Australia, the US and Canada and I hope shortly that one or two of us will go and see a few of them. This is non-trivial in organisational terms and has been particularly time-consuming recently.
Before that, at the beginning of February, comes LegalTech in New York. Three packed days bring the chance to see many of the people with whom I correspond, four panels to speak on, and an opportunity to sniff the breeze and pick up the traces of pending developments, not just in technology but in rule-making and court practice and higher aims like access to justice and the role of the courts and technology suppliers in business survival and revival. One of my panels is about the international initiatives to which I have referred.
Several strands connect all these elements – the same law, in its roots at least, applies in each of the countries I have mentioned, and is a link which connects, say, Birmingham with Melbourne. The same language, more or less, is spoken in all of them. The same problems, of data volumes, time and cost, recur everywhere and rules have developed along similar lines to address them. And many of the suppliers are the same – the new empires of globalisation mean that names known in one country of products and of individuals are equally well-known in another.
Those are the broad sweeps. The minutiae which comes with them is pretty time-consuming as well. There are flights and hotels to book, a LegalTech diary to control, presentations to prepare for, sponsors and would-be sponsors to talk to and a web site to keep updated. I have bought some new domain names with relevant titles and aim to move much of my web site to them – another non-trivial task.
The interlinked boxes on my diagram, of rules, of seminars and articles, of courts and countries all come down to this: that what matters in Bristol matters in Brisbane; that proportionality may have different scales but the concept is the same; that the problems of volumes and time and cost are the drivers in big cases and in small; and that the technology for identifying, preserving, searching, filtering and analysing documents is much the same everywhere.