Although I do my own summaries of the conferences I take part in, it is more interesting in some ways to see what other people take away from them. A succinct summary from an interested party who was present as a delegate picks out what came across as the important strands – if you are organsing and chairing it, the whole thing is important.
Nick Patience from the independent technology-industry analyst company The 451 Group has done a post called e-Discovery conference thoughts in which he highlights a few points from the recent Thomson Reuters e-Disclosure Forum which struck him as being interesting, important or both. I would in turn pick out a couple of those for closer focus.
“given the presence of technology vendors on panels it was not surprisingly claimed that smaller firms can get on a level playing field as big companies through use of technology”
I think it was probably me rather than one of the technology vendors who said this, although it must have been someone else who said the next bit about “manual reviewers … often justifying their existence to maintain salary and overtime levels”.
I am very happy to assert that a very small firm with a good litigator or two can take on much bigger firms if it allies itself with a supplier of software and services. The lawyers can deal with the law, the rules, the tactics and the wielding of the evidence, leaving the search experts to serve up the disclosable material at his direction. There is no delegation of decision-making in this scanerio, just passing the otherwise disproportionately expensive grunt work elsewhere.
I would not have said the bit about lawyers “justifying their existence” (though others presumably did) because I would want some empirical evidence of such motivation. I see something subtly different, which is a conviction that manual review of everything is what the courts, the clients and the traditional duty of care requires. What each of them actually requires is proportionate management of cost and risk, and that needs an understanding of what alternative ways exist to deal with large volumes of documents.
The second part of Nick’s paragraph on this is critical to understanding the point here: manual review is not the yardstick of perfection, the gold standard, which is claimed for it. It is a group of humans making inconsistent decisions both as between themselves and as between Monday morning and Friday afternoon. It is a defective process which spreads similar documents between reviewers and between days, where technology will link e-mail threads together and show a single reviewer the “inclusive”, will group near-duplicates so that the same person sees them all, will cluster themed documents in one bucket or pull together documents linked by common concepts.
Reading documents, and the application of high-quality brain to content, is very much part of the process. The technology is not yet a substitute for the lawyer’s mind, but a means of discarding obvious dross, prioritising apparent gold, and allowing block coding decisions to be made over groups of documents which the lawyer sees as having common elements.
The other of Nick Patience’s points which I will pick out is the one about the UK’s potentially advantageous position standing between the US and the EU, with the geographical (and the data privacy) advantages of the one and the discovery tradition and language of the other. A UK lawyer who combines those advantages with an understanding of the technology has opportunities if he cares to take them. We are in Europe whether we like it or not. Very few people outside the biggest firms understand the laws on data protection, let alone the implications and practicalities of dealing with them. Very few Americans understand the EU (and after last week’s backstairs fixing and jobbery who can blame a fiercely democratic country for not understanding the EU). There is new work to be won there.
My thanks to Nick Patience for a thoughtful summary of the conference.