One of the benefits of being linked to the companies who sponsor the e-Disclosure Information Project is the opportunity to talk to those who work for them. These are the people who are out meeting with and working with the users, both lawyers and corporate clients, and it is in part from these conversations that I keep in touch with what is happening. They may, flatteringly enough, have called me to ask for my view, but I generally get as much as I give in these discussions.
One such is Laurence Pender, Enterprise Business Manager for Guidance Software in the UK. Guidance Software sell applications for collecting, preserving, and processing digital information. The flagship product is EnCase eDiscovery which is used by corporates for in-house management of their data for litigation, for regulatory requirements or for other types of investigation. Many of those who come to Guidance’s UK offices at Slough come to be trained either in EnCase eDiscovery or its related products, or in EnCase Forensic, the industry-standard tool for computer forensic collection and investigation.
These products may have their roots in the same technology, but their scope is very different and they are aimed at different markets. Those who want the primary EnCase certification to qualify them to collect data for their employer or for clients (perhaps for criminal investigations) have not hitherto been much interested in civil litigation and all the wider electronic discovery implications which go with it.
Increasingly, however, such people have been asking for information about civil litigation work and wanting to know more about the wider issues – and wider markets – which exist beyond mere collection of data. Gratifyingly (from my point of view anyway) Guidance refer the questioner to the White Paper, The Place for EnCase eDiscovery in Electronic Disclosure for Major Corporations in UK Courts which I wrote for them last year. What interests me, as Laurence expected when he told me of this trend, is that people are beginning to realise that the skills and experience gained from criminal and similar work, are the same as those needed for civil collections.
We do not, in the UK, impose the same tests – of admissibility, defensibility and so on – that are central to so much US litigation. Nevertheless, UK lawyers who have read the Hedrich judgment (see my article Is Hedrich more important than Digicel? ) will have begun to appreciate the advantages of collecting data properly for routine litigation. More negatively, they will have seen the potential downside of not doing so from the narrow escape which Hedrich’s solicitors had from a wasted costs order. It is therefore unsurprising that those who are expert (or who are qualifying to become expert) in data collection should take notice of the potential market for helping solicitors to start the disclosure process on a secure footing.