I am very pleased to welcome electronic discovery software company Stratify as a sponsor of the e-Disclosure Information Project. Their addition to the list of sponsors coincides with the opening of their London office and data centre, as well as Stephen Whetstone’s welcome appearance as a panellist at the Thomson Reuters conference last week.
Stratify is a subsidiary of Iron Mountain, Inc., the information protection and storage services giant. Iron Mountain has long-standing facilities and clients in the UK and EU (see the Iron Mountain UK site) as well as elsewhere in the world. There is no technical reason why the data must be close at hand, but EU clients want not only to have personal contact with their discovery suppliers but must be able to house their data within the EU for data protection and privacy reasons. Iron Mountain’s storage and data security infrastructure and experience will be comforting factors. The Iron Mountain press release sets out the business proposition for potential clients.
Stratify’s website is dominated by the message Know What You Have – a neat encapsulation of what is the primary problem in e-Disclosure / ediscovery. One of the points made on one of the panels which Steve Whetstone sat on last week was that, in the days of paper disclosure, you knew at least what your sources were and where to find them. Today, it is a serious issue merely to identify all of the places where data may reside, before one can begin to identify what part of that data is disclosable. Even that is only the beginning, since only a fraction of the potentially disposable documents are actually worth giving serious thought to.
This is an everyday issue, not just something which other people have to deal with: the defendants in Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) (08 October 2009) were able to produce many documents, but none of them, alas, actually went to the central issue. They must have existed, and probably still do exist, but they were not available to the fact-finding judge. If the fundamental issue is one of document retention / litigation readiness (or, more usually, the lack thereof), the critical question Where is my data? is part of the process which has become labelled Early Case Assessment, on the basis that you cannot assess anything until you know what you have got.
Anecdotal evidence suggests that many lawyers and their clients are adopting an approach similar to that of children who cover their eyes and assume that the bogeyman has gone away. Electronic documents are no less there because they are electronic. Pretending otherwise is more than a mere breach of the rules and of professional duty – the documents with which you win or lose your case are in there somewhere. If they are winners, you may get a victory without a fight. If they are documents which are against you, then better to know that sooner rather than later.
I understand that Stratify will shortly open a UK website – that has to be the right thing to do, because there is more than terminology to differentiate US and UK litigation. A glance at the US site may, however, be salutary for UK and EU lawyers. There are three tabs on the home page. The first (that is, the default tab) is aimed at in-house counsel. Iron Mountain already has its feet under the desk, as it were, in many corporations. It takes no great prescience to anticipate that clients will start to wonder why they are sending their data on an expensive loop via lawyers when the first stage at least (the “know what you have” stage) might be done just as effectively, and more cheaply, in-house using resources which are easily accessible via people they know already.
That does not mean that there is no place for external lawyers in the process, but they need to define what that place is. There will be no room for those who sit back waiting for boxes of documents to be delivered to them.
Those who heard Steve Whetstone speak at the conference last week will have deduced that he was a lawyer before turning to litigation software. There is going to be a realignment of the resources brought to bear on electronic disclosure, with in-house departments, lawyers and third-party providers dividing up the work in non-traditional ways. The really interesting question is whether the arrival of a big new player in the UK and EU market will merely see a redistribution of the current levels of work, or will coincide with an upsurge. I think that we will see the latter, and I assume that Stratify’s own market research will have drawn them to the same conclusion.
Stratify’s London office is at
3rd Floor, New Broad Street House
35 New Broad Street
London EC2M 1NH
Tel: +44 (0) 20 3009 3112