The article on E-Disclosure in today’s Times E-disclosure: how good is your filing system? by Grania Langdon-Down leads with the extraordinary “lost in the photocopier” excuse given by Ofsted as they gave late disclosure of 2,000 pages of documents in Sharon Shoesmith’s judicial review case.
I was interviewed for the article some time ago when the lead subject was HHJ Simon Brown QC’s judgment in Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) (08 October 2009). I wrote about the Ofsted shambles on Tuesday (The Baby P case may be the disclosure story of the year) and Grania Langdon-Down rang me 20 minutes later, without having seen my post but having reached the same conclusion as to the significance of the Ofsted story.
As I said in my article, we must not let the distinctive and newsworthy features of this case obscure the fundamental point made by me and the other people interviewed in the Times. Mark Surguy of Pinsent Masons led Pinsents’ recent South African outsourcing initiative with Fronterion and is eloquent on its benefits for the firm as well as for clients. He makes the point that there is no legal obligation to keep ESI before litigation threatens. His message, though, is the same as mine – the “challenge…to get information out of clients”, as he puts it – is more than a matter of just meeting strict legal obligations – you do actually want to win this case and to do so at the lowest cost. Litigants who find it disproportionately expensive to dig out their own key documents (Barclays in the Earles case) or who find them late, by accident and down the back of the photocopier (Ofsted in the Shoesmith case) cannot complain either about their lawyers’ fees or about the civil justice system.
Charles Holloway of Millnet, also quoted in the article, is one of the few people in the UK litigation support market who had a career as a litigation solicitor before joining Millnet. Just make sure you do not miss the point he is making – document volumes may increase, but the technology to manage them, to cull them down and to get the ones which matter in front of the lawyers quickly, is gaining on the problem. It is the same point which Alex Dunstan-Lee of KPMG made in October (see Information retention and e-Disclosure conference in Brussels) – large volumes of electronic documents are much more easily searched than small volumes of paper.
The assertion that e-disclosure is all too expensive is as ludicrous as the suggestion that four ring-binders of paper got “stuck in the photocopier” – ludicrous because the documents exist and cannot just be ignored and ludicrous because it is made by people who have not bothered to make a couple of calls to find out what the costs might be.
A company might investigate the costs of document retention and find that they outweigh the risks of being the next Barclays or Ofsted, forced (as I said when interviewed for the Times article) to “take it on the chin” when an unavoidable circumstance – litigation, a regulatory investigation or an internal inquiry – turns up. These are the things which the Gartner report which I wrote about yesterday (see Gartner points to non-US E-Discovery market growth) refers to as “unplanned events”. If, as a board of directors, you can hold your head up and say that you did the sums and they did not add up to justifying pre-emptive action, then you will be judged for the quality of the decision rather than for neglect. If you are a public servant, such commercial decisions will be beyond your comprehension, but the days are ending when you just hold out your hand to the taxpayer for more money to fund your sloth and expensive incompetence.
This subject is going to make or break individual reputations in 2010 – law firm managing partners, company directors, judges and even civil servants are going to find their actions or lack of action challenged, as the combination of a post-recessionary rise, new pressures from courts and regulators, and increased questioning from shareholders and a new government put the pressure on them to show that they did at least consider the problems and potential expense caused by the need to produce documents. The Times article is timely.