Minimizing risks, costs and challenges is the title of the IQPC eDiscovery conference taking place in New York from 7 to 9 December 2009. I will not be there, but the agenda offers more opportunities than its title suggests.
I would have gone, for example, to the Judicial Perspectives panel which Patrick Burke of Guidance Software is moderating, with no fewer than six US Magistrate Judges. At the top of the six bullet points which form the agenda is Sedona Cooperation Proclamation – should lawyers cooperate with each other? It would be interesting, would it not, to get a glimpse now of the six hot topics for the agendas for, say, December 2012 or (which is more feasible) to look at old topic listings and compare and contrast them with today’s. When did “co-operation” first make an appearance on the agendas? Patrick is good at spotting what is coming next and, if my own experience on his panels is a guide, will make good use of his army of panellists.
The next session, too, called Aligning The Interests Of Inside Counsel, Outside Counsel And IT, has more resonance than it used to have. Post-Qualcomm, and post-recession there has been a change in the balance of power, reflecting a change in responsibilities and a closer attention to the purse-strings – the former cutting both ways and the latter being a new in-house power. Power, of course, brings responsibilities, and those in-house counsel whose exercise of responsibility goes no further than a demand that costs be cut are unlikely to get the best from their cases, their lawyers, or their budgets.
Deborah Baron of Autonomy is another whose moderating skills get good results from her panels. Hers is called Strategies for controlling the cost of review in a defensible manner. If the key aim pulled from the bullet points is “to increase accuracy AND review speeds” (my emphasis) then the key factor, from the next bullet, is “managing the people that use the software”. We can (or ought to be able to) take the bare operation of the software for granted by now. Managing it and the people to raise speed and accuracy simultaneously is the key – that sounds tritely obvious, but I have learnt that repetition of the tritely obvious always finds audiences for which it is news.
Deborah Baron is back again on the second day with a client case study with Karla Webb of Bechtel. Case studies are like novels really – narratives in which it all goes swimmingly for the participants from day one are fearfully dull and tell us nothing about real life, whilst disaster stories where everything explodes, erupts or sinks and everybody dies just remind us of our first IT project. What we need is a tale of plucky endeavour against apparently overwhelming odds, of ambitious near-misses and miraculous recoveries, of obstructions avoided and cynics confounded, with customer and supplier united at the end in mutual respect and admiration. The middle category thus described tends not to be told on public platforms (save possibly in the courts several months later) and Deborah is never dull, so we can expect a story closer to my third example.
Preservation, outsourcing, spoliation, early case assessment, privacy and blocking statutes and costs management are all on the agenda, and properly so. What is good is to see some unfamiliar names (and some high-ranking corporate names at that) amongst the speakers.
Don’t be tempted to miss the session called Hot New Sources in EDiscovery, which covers new data-capture and storage devices and the growing sources of social media which increasingly turn into unsocial sources of damning evidence. The most esoteric source of key data I have ever heard of was a microwave oven, so pretty well anything might reveal something worth collecting and easily overlooked. Every week brings us a new story of someone tripped up by their curious assumption that a FaceBook entry, Tweet or blog post is somehow immune from recovery. I was recently asked if I agreed that conventional stuff – emails, Word files and the like – were still the staples of ediscovery. I did agree – and found myself, two days later, in a meeting discussing vast quantities of something distinctly off the main stream.
Most of the big glaring failures, the ones which make it to the case reports, boil down to ignorance of the basics – lawyers who don’t know the rules, who have not read the cases, and who think that electronic data is the preserve of big firms with big cases. Conferences like this one are able to take some of that for granted and move the discussion to a stage beyond the fundamentals. The aims in attending such an event are partly the defensive ones of risk, costs and challenges implied by the title, but include also the possibility of spotting more positive opportunities. Saving money and reducing risk merely allow survival, but finding new ways of working and acquiring new skills enable something more. This agenda offers opportunities as well as defences.
By the way, before all you English purists (there are not many of us left) write in to complain that I have gone native in putting a z in minimize, note two things: one is that this is an American conference, so its title is necessarily spelt in the American way; the other (and this surprised me) is that minimize precedes minimise in my trusty 1964 Concise Oxford Dictionary, and is not a foreign spelling at all.