My primary topic, electronic discovery or electronic disclosure, is a sub-set of a wider subject – more than one wider subject, indeed. It is important as a matter of simple business efficiency; it is critical to the subject of access to justice, which matters as much to large corporations as it does to ordinary individuals; and it is fascinating (to me anyway) as an example of technology being applied to move the world on. It is not the pure science – my Grade 9 in Physics with Chemistry O Level was well-deserved – but the conjunction of human endeavour and technology being applied to practical problems which interests me. I may describe some of the e-disclosure applications as “near-magical in their capabilities”, but I stress also that the most important technology lies between your ears.
I have had a couple of days away. If what you come here for is undiluted e-disclosure then you will have to wait – there are posts coming up on subjects as narrow and varied as TREC and search technology, on privacy and German works councils, on Special Masters and on other e-discovery topics. Today concerns wider matters, although the theme – that you can do almost anything if you really want to and have the tools to do it – applies as much to managing litigation as it did to the esoteric examples which have come my way in the past few days.
I am not good at going away – at going away from my desk, never mind my office – except for work-related trips. I blame all those years in selling and supporting litigation software when a missed call might be a missed sale or an unhappy user. What I do now can be done from anywhere with an internet connection and BlackBerry reception – both largely absent from the Lake District, as it happens, but I did not know that when I set off.
The gap in the diary was caused by my having reserved two weeks to follow up some interesting discovery-related introductions around the world with Senior Master Whitaker in parallel with a fact-finding tour by the UK’s Civil Justice Council and Lord Justice Jackson. Nearly all the disclosure part of that fell through for various logistical and funding reasons, the sole survivor being a visit to Hong Kong by Master Whitaker. He went at the invitation of Epiq Systems to speak at a seminar hosted by Allen & Overy, and attended by in-house lawyers and associate lawyers as well as by Lord Justice Jackson and the UK Civil Justice Council representatives. That seems to have been a great success. I had not planned to join the HK leg, and by the time the rest of the plans dropped away it was too late for me to go. More on that, albeit at second hand, in due course. Running with those aborted plans also screwed up my intention of going to the ABA TechShow in Chicago where our own Professor Richard Susskind apparently gave them both barrels on the need for a drastic change in the legal profession’s approach to getting and doing work.
The unexpected free days coincided with the end of my wife’s and eldest son’s terms at their respective universities, with the first good weather of the year, and with the last week before the end of school term turns the Lake District into a large rural car park. Sixty seconds with Google turned up a first-rate hotel, with good food, a mid-week offer, and a willingness to accommodate a dog, and off we went.
The theme is not “What I did on my hols” but the ways in which technology has been harnessed to achieve something challenging, useful or just interesting. Our trip swept up a railway, a musical instrument and a speed-boat, whose commonality involves the achievement of the apparently impossible by combining thought, effort, skill and science. It touches on two other things which are inspiring, to me at least. One is the unfashionable idea of heroes – not just Hector and Lysander and others such as these, but more everyday people who achieved things which have lasted. The other is that feeling of proximity to the past which you get when you stand where the heroes stood. I attribute the former to my prep school, where I learnt the words to the British Grenadiers (whence comes the reference to Hector and Lysander) and where the dormitories were named after recent military or sporting heroes. I was in Segrave, named for Henry Segrave, who died on 13 June 1930 after his speed-boat hit a log as he achieved the then water speed record of 98.76 mph.
The accident happened under the windows of our hotel on Windermere, off the left of the view shown here. I will come back both to speed-boats and to proximity to the past in a moment.
Looking at the map of west Yorkshire, you would think it madness to build a railway line from the junction at Settle up to Carlisle, 72 miles away. The terrain is unwelcoming and the population sparse, and modern bean-counters, to say nothing of whining Elf ‘n Safety officials, would condemn the idea out of hand. They were made of sterner stuff in 1865, however, when the Midland Railway applied to Parliament to build a more direct line to Scotland straight across the moors. The Act was passed, and, in 1869, 6,000 men set to work on the last railway in England to be built almost entirely by hand. Its objective was commercial – it had to compete for speed with existing rivals – and the line followed the most direct route, needing 20 viaducts and 14 tunnels. The line was opened to traffic on 1 May 1876, only seven years later.
Its particular glory is the 24 arch Ribblehead Viaduct, seen here. The line is carried 104 feet above the valley before plunging immediately into the 1.5 mile Blea More Tunnel which is 500 feet below the moor, and thence to the shorter but no less impressive Dent Head Viaduct.
There, more than anywhere I have ever been, you can sense the past – the surveyors with their bowler hats, plans and elevations, and the navvies handling enormous blocks of stone with ropes and pulleys, all in a hitherto empty landscape.
Scale and an obsessive will to succeed played its part in my next example – scale in more than one sense. On 11 June 1785 an eccentric called Peter Crosthwaite found six pieces of stone which, when hit, produced a musical tone and which, when hit in the right order, made most of a scale. He devoted himself thereafter – years spent scrambling up mountain-sides – to finding enough musical stones to build a large xylophone-like musical instrument, with each stone in the sequence making a note one semi-tone above the last.
The result is to a xylophone what the Ribblehead Viaduct is to a footbridge. We came across it when the travelling part of it (yes, it is portable) turned up at Leeds University for a concert minus its performer, and my son Charlie was called upon to play it, live in concert with no prior opportunity even to hear what it sounded like.
We went to see it at Keswick Museum, to be told that its travelling part was up the Honister Pass in preparation for a concert. This seemed unlikely – my recollection of the Honister Pass, from my last visit exactly 40 years ago, was of a bleak, empty landscape with nothing in it except a slate mine. And that is where we found it, by the side of a mining track, about to be sent down the mine. That apparently has a vast cathedral-sized space capable of housing a concert.
You can only gape with amazement really. The mountain-sides bear evidence of long-abandoned technology, including what looks like the track of an industrial funicular railway. The map shows a “Dismantled Tramway” running off into nowhere. Beneath our feet, ten miles from the back-end of beyond, was a large cavern in which someone had planned a concert involving a 220 year-old stone xylophone. It spurs you on a bit, doesn’t it?
Forward nearly a couple of centuries for another example of skill and technology coupled with an obsessive wish to be the best. Henry Segrave’s water speed record was taken by Sir Malcolm Campbell when he reached 141 mph on Coniston Water in his speed-boat Bluebird in 1939. On 4 January 1967 his son, Donald Campbell, turned his speed-boat, also called Bluebird, near this bleak spot on Coniston.
He had just completed a north-to-south journey down the glass-like lake at just over 300 mph and needed to do the same on the way back, not just to beat his own water-speed record of 260 mph but to ensure that the record would be safe in British hands for a while. Campbell had pushed the record to 225, 239, 248 and 260 mph over the years since his father’s record.
Campbell did not stop to refuel at the south end of Coniston, and it is probable that the reduced weight coupled with the wash from his south-bound journey caused the disaster which followed, a mile or so north of this spot. Bluebird’s nose lifted and she did a complete somersault, killing Campbell instantly.
Just look at those speed increases over the short period between Segrave’s record of 98 mph in 1930 and the younger Campbell’s’s death at 300 mph in 1967. We keep thinking we have reached our limits – in sport, in technology, in almost anything – but onward and upward we go.
We did not have a dormitory named after Donald Campbell because he still had two weeks to live when I left the school. What I did not know until last week (thank you again, Google) was that the austere man who ran the school had his own claim to be a hero.
The obligation to pick out the key documents from a mass of others is often compared with searching for a needle in a haystack. My headmaster had a similar task in the war – he flew Catalinas over the Indian Ocean, looking for small boats containing survivors of U-Boat attacks. On 3 February 1944, he found one and, in the words of a survivor, “flew straight at us and dropped a bag of provisions with quite remarkable precision – it landed no more than an arm’s length from the raft”. No wonder the man was picky about the accuracy of our Latin translations or our bowling.
I did warn you that this had little or nothing directly to do with the disclosure of electronic documents. The commonality lies in attempts to achieve the apparently impossible, the conviction that it is worth trying, and the application of some permutation of brain, skill and technology to pull it off. It is found in the sheer bloody-mindedness of the railway engineers determined to drive a straight line to the borders, of a man searching the mountains for a stone which sounded G#, of Campbell fixed on beating 300 mph, or of the Catalina pilot scouring the ocean and dropping food parcels with life-saving accuracy.
Compared with some of these things, our aims may seem a little prosaic – there is something gutsy about building a railway or beating a speed record which is lacking in culling a million documents, beating a sales target, delivering a ground-breaking judgment, or preaching to the empty air (as it sometimes seems) about e-disclosure. There is something about our age – obese, ill-educated, politically corrupt, and burdened as it is by bureaucratic nobodies with powers in excess of their competence – which makes it unfashionable to talk of endeavour, of striving onwards and upwards, of carrying on against all odds, let alone to apply them to the daily grind. They are pretty inspirational though, even in that humdrum context.
You can find parallels, though. Day 1 of a big new disclosure exercise cannot be more daunting than facing a construction project over 72 miles of moor and rock, with a work-force of 6,000 and a commercially-imperative deadline to meet. Finding those key documents is much the same as tramping over miles of mountain-side in search of a piece of rock which looks much like the rest but sounds exactly right, or flying over miles of ocean in search of a small raft which may not even exist. The development of data retrieval technology matches the incredible increases in speed as Campbell pushed his boat and himself ever higher.
I might have learnt more about e-discovery if I had gone to Washington and Toronto, but a few days in the Lake District was not entirely bereft of inspiration.