Litigation support providers from the relatively small UK market made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.
The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.
The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.
Lisa Burton of Legal Inc introduces the Panel
Peter Cladouhos, Sanjay Bhandari, Matt Davis, Andrew Haslam, Charles Christian
The case which has demanded most attention is Digicel. In Digicel (St Lucia) v Cable & Wireless, the defendant was required to redo part of its disclosure because it had not agreed keywords with the claimant, and to discuss co-operatively the extraction of data from backup tapes, a task which it had previously dismissed as disproportionately expensive. Sanjay Bhandari said that, while Digicel was important, it did not come from an appellate court and was thus not binding on others. He is right, but Vince Neicho of Allen & Overy and I were jumping up and down with our hands up like kids at a school quiz, keen to get across that Digicel did not need to bind anyone – it made no law, merely gave prominence (and how) to the existence of an obligation which has nestled unseen in the CPR (in the form of the Practice Direction to Part 31 CPR ) since 2005. Digicel, I said, was a straightforward plod through the PD obligation to discuss sources. As Senior Master Whitaker puts it, you do not need case law to validate a clear rule.
In retrospect, I think Vince and I were the dogs in Sanjay’s Pavlovian experiment here – he only said it to see which of us would react first. His real point, as he made clear, was that Zubulake was not binding on other courts, but threw a searchlight onto an obligation which has since been accepted as the norm – and changed US litigation.
Charles Christian makes a point
The reference to the PD to Part 31 threw up a neat example of the growing crossover between UK and US approaches – developments in parallel, I think, not necessarily by example going either way (OK, you can’t have a crossover in parallel but you know what I mean). The UK Practice Direction obligation highlighted by Digicel is designed to make parties focus early on their electronic sources and discuss them. Many of those who come across this obligation (including, one suspects, some of the judges who are supposed to enforce it) snap the White Book shut quickly and hope that no-one else raises the subject. Someone pointed out that US Magistrate Judge Facciola had levelled the same charge at US lawyers in his keynote speech that morning.
The motive here is NOT to compel electronic methods on every case, but to flush out as early as possible what the proper approach should be and to have the debate – in front of the judge if necessary – before everyone gets locked into a course which may increase expense later. One of the speakers said that the whole litigation runs more smoothly if the evidential building blocks are sorted out up front.
One of the trends which the panel identified was that competition was forcing down the costs of litigation applications and the services to support them. This is a separate economic force from the effects of recession, and is a standard reaction in a mature market when the early adopters have paid the price (and reaped the rewards) of being ahead of the game. No-one is saying that these products and services are cheap, but nor are the costs they replace – lawyers’ charging rates may stabilise as recession bites and cheaper alternatives (contract lawyers, offshore coders) be found, but the key aim is the reduction of hours by applying ever more efficient technology to the volumes and using the rules and court processes to hack away at unreasonable conduct. The definition of what is reasonable changes as better tools evolve and more co-operative and cost-effective approaches are dictated by the courts – some of the courts, anyway. It is probably too late to rescue the word “symbiotic” for its roots in biology, so we may describe this mutually beneficial relationship between technology and court directions as symbiotic, each driving the other upwards as judges require more and technology delivers it, enabling the courts to raise their expectations again.
One of the identifiable trends (and we heard this everywhere else at LegalTech) is that more work is going in house as companies realise that they can do much of the work themselves. Sanjay Bhandari said that the nature of Ernst & Young’s work had shifted in the last year as clients sought proactive advice and not merely fire-fighting. E&Y were, he said, increasingly being introduced to outside lawyers with “these are the guys you will be working with”.
Still on the subject of the democratisation of electronic litigation support, Andrew Haslam said that smaller firms could jump over three years of development of applications and ideas. Lawyers are more willing to accept that it works without understanding how it all works. You could, he said, almost see a light-bulb coming on when you showed lawyers what a content analysis application could deliver – he named Attenex specifically as an example. This is precisely why I try where possible to show groups of lawyers a snapshot of such applications (see e-Disclosure Taster Menu in Bristol). Even where the application in question is what I call “aspirational” (that is, beyond the reach of those without big litigation in hand) it shows the power of these applications generally.
There is another relationship here which, if not symbiotic, is iterative and virtuously or viciously circular depending on what you make of it. The world is dividing, as Judge Facciola said in the speech referred to above, into those who get technology and those who do not. Those who decline the opportunity will never get the work which needs it and the knowledge gap will become too big for them to jump. The hewers of wood and drawers of water will become doomed to keep those roles (Joshua IX.verses 21, 23, 27, if you want a reminder of the fate of the Gibeonites, who lost their nerve and pretended to be inferior, ending up performing menial tasks as a punishment).
This was a good session, with Charles Christian driving his flock from subject to subject to ensure that most of the advertised topics were covered. It lived up to its billing as sharing key lessons learnt from hands-on experience.
Peter Cladouhos, Sanjay Bhandari, Matt Davis
Sanjay Bhandari and Andrew Haslam