Is the rest of the ediscovery world really ten years behind the US? Perhaps it is Judge Scheindlin’s recent strictures which put the US so far ahead of the rest of us in the proportionate search for justice and truth.

There are those who say that one should never look back, and that the past has no lessons for us. I do not underestimate the value of anticipating what is round the corner but, since my degree was in history, I do not underestimate either the value of understanding the past as a component in anticipating the future.

It is one of the truisms of life – of personal life as well as business life – that one underestimates the rate of progress from this point on. We think each year that we have reached a plateau from which culture, business and technological change will advance only slowly. Those who predict rapid change are assumed either to be cranks or to have something to sell. The fact that this is actually true of many prophets (whether of doom or of beneficial change) does not get us away from the certainty that the rate of change is increasing.

It is hard to think back to the year 2000. In our memory (in mine at least) it seems not that long ago. In reality, the discovery world then is not recognisable as the one we face now. Many things are obviously better; much is clearly worse; a lot of it is just different

Mary Mack of Fios has given us an interesting review of the last decade in her article A quick peek at a decade of eDiscovery It may well be the only article you read that has “BlackBerries” and “DOS” in the same line.

I have to be pleased, obviously, that mine is the only non-US information resource referred to in the article, with the sentence “true, there is the e-Disclosure Information Project”. It is good to be noticed in an article which is inevitably US-centric. I disagree, and strongly, however, with the last sentence in that paragraph which reads “but essentially, in the international context, it’s like it was in the US in 2000”. This dismissal embraces the whole of the non-US world, and I think it is plain wrong (and not just because I presumably get swept up with the rest of the non-US world as being apparently ten years behind).

I take issue too with the suggestion that the UK case Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch)  is only important because it mentions Sedona. Which regime would you prefer, all you very sophisticated, ten-years-ahead-of-the rest-of-the-world Americans? Would you like a careful, methodical walk through what the rules require, balancing the needs of justice against the costs of achieving it, as in Digicel, or are you happier with Judge Scheindlin’s latest essay? Thought so.

That apart, Mary Mack’s article is of importance for more than historical reasons. What, I wonder, will we be writing about in 10 years time?

Home