Recent comments from readers cover the Gartner report on the litigation software market, the state of play in Hong Kong, and the bright light which has suddenly been shone on the need for government departments to approach electronic disclosure in the same way as a large law firm or company would approach it.

From time to time a reader drops me a line suggesting that  something I have said is ambiguous or unclear, or that I have left something out. The omissions are often deliberate – not by way of censorship, but because I am anxious both that I should get to the end of writing the post and that you should finish reading it. These signs that people are bothered enough to write in are extremely welcome. I had three last week, and they are all worth passing on.

Two of them derive from my post about the Gartner report of 16 December E-Discovery Software Marketplace is Set to Continue High-Growth Pace. Andy Wilson of e-Discovery services provider Logik in Washington said this:

Good recap of the Gartner article Chris, but to the casual reader I think it needs to be more clear that the original article was about total Software spending revenues, not the entire eDiscovery market.

I had thought that this was clear, not least because the name of the report which was the subject of my post expressly refers to the “Software Marketplace”. On re-reading my article, I could see that the casual reader to whom Andy refers might indeed miss this. The total e-Discovery spend is very much bigger and is likely to rise pro rata to the software sales. I have removed any ambiguity on this score.

Aaron Bleasdale of Epiq Systems in Hong Kong found an error rather than a mere ambiguity. My main interest in my post about the Gartner report was its suggestion that the international e-discovery software market stood at about 10% of the whole and was likely to increase both absolutely and (by implication) as a proportion of the overall spend. Aaron wrote as follows:

I’m an e-discovery lawyer with Epiq, Hong Kong. I have subscribed to your blog and find it very informative.

I try to keep up with e-discovery developments in the UK because there really is no case law in Hong Kong on the subject. Hong Kong has been working hard to drive through a reform of its civil justice methodologies, and just has not had time to grapple with e-discovery.

Just wanted to point out that although Singapore has published its own Practice Directions, Hong Kong has not yet published anything of the kind. And frustratingly, there appears to be nothing in the pipeline in the immediate future.

He is, of course, correct. My original draft of the post set out recent developments in various common law jurisdictions, to an extent which unbalanced the article. My edited précis inadvertently lumped Hong Kong in with other places which had seen e-Disclosure practice directions. There is undoubted interest in the subject in Hong Kong, as we know both from an event which Epiq there organised in April and the LexisNexis conference in July, but the recently-implemented new civil procedure rules had no specific provision for electronic discovery. I very much hope to be in Hong Kong next year to find out more about the perceived requirements there, as well as to speak about the experiences in other jurisdictions and the solutions which are available.

The third contribution came from IT and litigation support consultant Andrew Haslam of Allvision, and picked up on my article about Ofsted’s belated discovery of 2,000 pages of documents as Sharon Shoesmith’s application for judicial review of her dismissal neared its end (see The Baby P case may be the disclosure story of the year). Andrew was part of a team which went to see a civil service solicitor 18 months or so ago to explore litigation support requirements. It appeared that the relevant department had no electronic documents – everything was done on paper, and there was never a need to review e-mails.

As we now know, there is so much paper that Ofsted got four ring-binders of it stuck in a photocopier and did not notice it was missing. I cannot quite bring myself to quote Andrew’s report in full (it is the season of goodwill and all that) but it is worth bearing the story in mind as our tax returns go in. If private practice lawyers do indeed rely (as is often suggested) on manual disclosure as a means of boosting fee income, they face the commercial sanction that their clients will go elsewhere or just stop litigating. If you leave aside the specialist investigative branches of the civil service (some of whom are well aware that technology is crucial to their work and make full use of it) the general run of government departments do not know about commercial sanctions or about litigation technology.

They litigate more than anyone, however, and whilst it may be right that what they work with is paper, the documents which they have to disclose must almost all exist as e-mail or in some other electronic form. Two new winds are going to strike them at once in 2010 – court-driven requirements to identify their electronic sources, and post-election ministerial demands for efficiency.

There are opportunities here both for those who supply into the higher end of the market and for the rising generation of public sector officials. If I was an ambitious young civil servant in a government legal department, I would not be waiting for an official procurement process to begin. I would look at the costs of the Ofsted shambles (which include significant reputational costs as well as public money) and I would start investigating how I would cut the costs of the next big case.

I wrote earlier this year about how I had arranged for FTI Technology, Autonomy, and Epiq Systems to give short, focussed demonstrations to Lord Justice Jackson. The products were Autonomy’s Early Case Assessment, FTI’s RingTail and Attenex, and Epiq’s DocuMatrix, all capable of handling very large volumes and all available without capital expenditure, so per-case costs can be compared on a one-off basis. The demos aimed merely to show what modern technology is capable of achieving for anyone facing large document volumes – tasters rather than a full-blown demonstration. It was the fastest and clearest introduction to litigation technology which I have seen.

The ambitious civil servant of the type I have in mind will know by now that pretending that electronic documents do not exist is not a line which will wash with the courts, quite apart from the keel-hauling which someone at Ofsted is presumably anticipating. I would be making calls to some suppliers immediately after Christmas.

If you would like help finding the right person to talk to at the companies I have mentioned, the others whose logos appear here, or at any other provider in the market, or if you just want to talk around the subject to get a feel for the range of services on offer, please contact me.

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