Thucydides joins Plato on classic e-discovery panel

In the last few days, both Ralph Losey and I have invoked Plato as an expert with something to say about e-discovery. Now Thucydides joins in.

One of the pleasures of reading the Times is that there is an inexhaustible supply of people able to supply missing detail from their own recollections. You get examples like “Your otherwise excellent obituary is quite wrong in asserting that the late Buffy Henderson won his VC facing enemy fire from the right at Salerno. It came from the left. I should know – I was standing on that side of him”, and similar personal recollections of pedagogues, thespians, politicians or cricketers of yore. It keeps the newspapers’ fact-checkers on their toes and, as Pooh Bah said in The Mikado, is corroborative detail, intended to give artistic verisimilitude to an otherwise bald and uninteresting narrative.

I can generally spot a cross-reference at 1,000 paces, but I missed one when reporting a few days ago that David Cowen had said at ILTA that ” history repeats itself”. He may well have done, says the learned Jonathan Maas, but Thucydides said it first. You have got to like working in a market where people send you e-mails like that, especially when recent articles by Ralph Losey and by me have drawn on Plato for inspiration.

I haven’t got time for this, you say. There is more than enough hard news and analysis around without you dragging up dead philosophers, historians and Buffy Henderson. Maybe, but the Twitter feeds today are divided equally between the EMC / Kazeon story  and the Organisation of Legal Professionals certification initiative which between them have flooded the network and lose their appeal after the first thirty or so references. Thucydides is similarly only interesting once, but I think it unlikely that anyone else will bring him into it.

He does, in fact, have something to say to us. He was the first historian to gather evidence in a scientific manner, hunting down original documents and interviewing eyewitnesses, and the first to analyse the causes and effects of his subject matter. He would have made a good litigation lawyer. It goes further than that. The Peloponnesian War between Sparta and Athens was preceded by a year of on/off negotiations after which Pericles alleged that Sparta had refused an offer of arbitration; there was an argument about the inclusion of an arbitration clause and difficulty in identifying an arbitrator satisfactory to each side. Lawrence A Tritle in his book The Peloponnesian War, says this:

The Athenians seem to have seized upon a diplomatic technicality that they used to bewilder and confuse the less sophisticated Spartans. They realised the difficulty in finding and then agreeing on an arbiter, and that suited them just fine. It allowed them to assume the role of the injured party in their negotiations with the Spartans. as they could always claim that they were prepared to submit their quarrel to a third party, when in fact they knew it would be difficult, if not impossible, to find one. With such delaying tactics, they could put off negotiations and at the same time continue their provocative policies, which were at the root of Spartan fears and anxieties all along. It was a perfect strategy, yet in the end it backfired and brought a war that the Athenians believed was winnable.

Now tell me that Thucydides has nothing to say about litigation. It gets better. Tritle says a few pages later that “this pursuit of war may also be explained by cultural attitudes that saw war simply as a way of life. Such a value … saw success in war as the clearest expression of manly excellence”. There is more  in there which, with the substitution of the word “litigation” in place of “war” would read like a handbook on inter-corporate rivalry.

Thucydides was more than a mere chronicler. If his historiography has a defect, it lay in his habit of reciting the speeches of participants apparently verbatim. They are assumed to be largely inventions, attributing to the players words which represent the reporter’s wish as to what was said rather than any genuine attempt at capturing the actual words, and are not to be relied upon as accurate. Just like our witness statements then.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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