My adverse comments on a post by an e-disclosure blogger known only as 585 bring reactions from Craig Ball and from 585 himself. What level of debate gets the messages across? Politics shows us how easily we can turn people off a subject.

You can track the course of the sun by the flow of the e-mails. First you get the Australians at the end of their day. England gradually wakes up and then, in the late morning, the first messages start coming in from America’s east coast. By the end of our working day, when English e-disclosure cyberspace has only me and Jonathan Maas in it, the west coast of America is in full flow. Then, before I go to bed, Australia starts again. So regular is this relationship between the sun and the e-mail traffic, that to get a message from Austin, Texas, at breakfast time makes you wonder if Phaëton had not once again taken the reins of his father’s chariot and driven the sun off course (oops, sorry, a few days’ immersion in the language of Sir Rupert Jackson’s report, as I have just had, and classical allusions start popping up everywhere).

Jan Eyck: The Fall of Phaëton

It was not Phaëton burning up the earth, but the doyen of America’s ediscovery commentators, Craig Ball, burning the candle at both ends. He had read my post Well-justified anonymity of Jackson commentator. To recap, that article was about an anonymous blogger, known only as 585, whose comments on Lord Justice Jackson’s 650 page Preliminary Report on civil litigation costs included a 625 word exposition on the proper way to disclose PSTs (Sir Rupert had apparently fallen short of the standards to be expected of a senior judge in his mention of this subject) and a disquisition on the imponderables which arise when estimating e-disclosure costs which, again, suggested to 585 that his lordship’s technical grasp was not as good as – well, as 585’s own grasp. Other articles were rather too free, to my eye, with imputations of incompetence on the part of lawyers and consultants involved in e-disclosure cases. 585’s article is called Electronic Discovery: Lord Jackson Report.

I had been cautiously polite about 585’s technical knowledge, less so about other aspects of his observations. In truth, I had not read his blow-by-blow account of the proper way to export PSTs, focusing instead on the thinking of anyone who felt that a judge’ s survey of the e-disclosure scene warranted such a reaction, “unconscious” as I put it “of the possibility that the Preliminary Report was not intended to be a technical manual”.

I had not provided a link to 585’s Jackson post. Craig Ball is an expert on keywords, amongst other things (his last UK-related post was about this aspect of Digicel) and it did not take him long to turn up 585’s article. He is a forensic technologist and Certified Computer Forensic Examiner and, unlike me, took the trouble to read what 585 had said about PSTs. His comment began:

Hello Chris

Your post made me track down the 585 post and read it.

Perhaps it is your courteous mien (“[I]f I do not have something pleasant to say in print, I keep my mouth shut….”) that accounts for your restraint, but I have no qualms saying that you are entirely too generous…

I originally intended to set out Craig’s comments in full, and the first version of this post did just that. I sat on it, however, for several days, curious to see if 585 would react in his own defence. In due course, a post appeared on his blog with the heading Who is 585? which began “Recently there have been several requests about the identity of 585 and questions as to why the blog is anonymous”. It is not just me, then, who is mildly curious.

Before I go any further, I should stress that word “mildly”. There is no shortage of things to write about just now, and if 585 seeks obscurity, let him have it. He did in fact write to me, and it is no judgement on what he said that Outlook parked his message in my junk e-mail folder where I found it some days later. The price paid for anonymity, perhaps, is falling foul of mechanisms designed to filter out its communications, whether those mechanisms be human or, like Outlook’s rules, agents designed to mimic and anticipate the human reaction. I am not above anonymity myself, I should add, but not in a professional context where I hope to be taken seriously.

Two things interest me out of this – how do we get the message across, particularly in the UK, and what level of debate ought we to have? Since my role is to inform and persuade, the subject is an important one to me.

As it happens, there is a parallel going on at the moment in public life, where the context is the role of insult and abuse to gain attention for a viewpoint. This was explored in Saturday’s Times by political columnist Matthew Parris (Stuff reason: hurl those insults, spit and mock). His subject was Alan Sugar, now Lord Sugar of Clapton. The Noble Lord, as we must now think of him, is threatening a journalist for suggesting that he is (in Parris’s words) “a telly peer of limited intellect”. The real target, which has got a bit lost in this debate, is not Sugar but Gordon Brown, whose decision to appoint Sugar as a titled adviser was driven more by the need for an eye-catching headline than by any rational approach to forming a government. Sugar, who built multi-million pound businesses from nothing and is the star of a popular television programme, has achieved far more than a dozen government ministers.

The point, so far as I am concerned, is not specifically the role of insult and abuse in attracting attention but the use of collateral means generally to make messages interesting and acceptable. A spoonful of sugar, as the song goes (by happy contextual coincidence), makes the medicine go down. The only people who will read undiluted technical information are those who are already on side. The audience we want is those who are not converted, and it would be easy to drive them away.

My objections to 585’s article about Lord Justice Jackson’s report (and my comments were narrowly about that article, not the rest of his undoubtedly valuable site) related to its potential to alienate the very audience whom 585 and I both aim to reach. Sir Rupert Jackson needs no defending by me. He anticipates, and indeed hopes for, spirited debate about the points which he has raised. Laying into him and to those who advised him because of a side-reference to the minutiae of handling PST files may discourage people from reading his thoughtful and important analysis of e-disclosure in the Preliminary Report itself – it is easy, in an information-rich and busy world, to accept the quick impression of a second-hand report as a substitute for the primary source.

Similarly, 585’s readiness to accuse lawyers and consultants of giving “bad advice” (for example in relation to Digicel) is unhelpful. That is not because criticism is itself a bad thing but because we have no idea what the components were of the decision-making process in that case. Having regard to the identity of the lawyers and consultants involved in Digicel, I would myself be slow to attribute the outcome simply to “bad advice”.

585 says that he did not intend any of this, and adds that I was selective in a passage which I quoted about allegedly bad advice; if I had quoted the whole passage, he says, a more balanced viewpoint would have emerged. That misses the point. My concern was that people skimming the article would come away with the same impression as I did, and would be put off the whole subject. This is much the same with the debate about Lord Sugar’s intellectual capacity – it takes the eye off more important things such as the lack of talent in Labour’s high command, the only too obvious absence of any business experience in the government, and the democratic implications of replacing elected representatives with the party’s friends.

It is different in America (I am back onto e-disclosure now, not standards in politics). E-disclosure in the UK is a delicate flower which must be nurtured carefully. In the US, it is in only too robust shape. On our side, it is the elephant in the room which no one discusses. In the US, it is just an elephant, big, ungainly, and very expensive to feed. Where we struggle to get the subject discussed at all, American lawyers and commentators like Craig Ball argue vigourously about the right way to do things because so much of what is being done is so obviously wrong. I’m not sure that we are ready for that here. As with politics, the most likely outcome of public slanging matches will be that people will keep their backs turned to the subject.

Is it fair, I wondered, to turn a strong and forthright critic of American e-discovery loose on poor old 585? More to the point, would it add to the debate to do so?

585 has a privileged position. He has some technical knowledge (although there may be more than one view as to its scope), he has a platform, and he has the time to write about the subject. I do not worry that he might put the audience off – a five-word heading which gives the wrong names to both the subject-matter and the judge is not likely to be read by many lawyers (I too use the term “discovery” where appropriate, but Lord Justice Jackson’s Chapter 40 is about the English rules and is headed “Electronic Disclosure” not “Electronic Discovery”).  585 has the skills and the opportunity to encourage wider take-up and understanding of e-disclosure to the benefit of both his company and the wider cause. It is hard to see how his company will benefit when he declines to identify it, but that is his business not mine. My concern is that his talents and his platform could be used to bring enlightenment where it is much needed and, in this article at least, he has risked achieving the opposite.

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