Although I have long had an interest in disclosure and specifically in electronic disclosure, the sense that there was a mission and a message to promote dates from the IQPC conference in London in May 2007. It was the first big conference I had attended, and was the first time I met Senior Master Whitaker and heard him speak. The other speaker who caught my attention at that conference was Mark Surguy of Pinsent Masons. His message was not addressed to those accustomed to e-Disclosure but to lawyers who might find themselves suddenly involved in a case which required skills and knowledge about handling electronic documents for which their experience had not equipped them. His message was that everyone should know what they would do if an urgent e-Disclosure problem arose tomorrow. Lawyers ought, he said, to know who they would call whom they could trust, and what the terms of engagement would be. His suggestion was that every firm should identify at least two providers of software and services and should have reached a framework agreement with them on matters including price and the divisions of responsibility and liability.
This gave a focus to what otherwise may have appeared an easily-deferred subject. It converted e-disclosure from being a section in the rules which seems to be ignored by everyone, judges included, to a matter of risk management and practice development. If you are content to look on the disclosure of documents as being merely a future stage in the conduct of the case, then by all means sit and wait for the problem to arise. Quite a lot of e-disclosure jobs do not arrive like that, however – new instructions turn up out of the blue, often late on a Friday afternoon, involving an injunction, a regulatory investigation, the suspicion of internal irregularities or the sudden departure of an employee in suspicious circumstances. What would you do about it then, Mark asked, as you scrabble for the Yellow Pages, or make fruitless Google searches?
The world has moved on since that conference in 2007. We now have cases which emphasise that the risks derived from ignorance have escalated; Master Whitaker and I share platforms around the world, and this has moved from being a subject on which he was a lone voice to one where he has allies; your Google searches would now find my web site, which would give you a starting point and some names to contact. In parallel with all this, new ideas have emerged about how to carry messages to those who need to hear them.
I have written several articles about the merits of short videos in readily-accessible places like YouTube – I do not particularly like appearing in them myself, but I appreciate the reach and immediacy which they bring and will do it if I have to. Part of the business case for the iMAC which I have just bought is my intention to add the production of videos to the other means at my disposal for spreading messages.
Greg Bufithis of the Posse List and Project Counsel has got there already with a new series of videos. The first to come to my attention is a recent interview with Nigel Murray of Trilantic. What caught my eye in it was the focus on this same point – how do you react urgently to a problem which appears from nowhere?
Nigel gives three examples of projects recently undertaken by Trilantic at short notice. These might involve multiple foreign jurisdictions, which brings logistical challenges on top of the mechanics of handling paper and / or electronic data in a hurry.
Trilantic claims no monopoly on this – other players in the market will turn out anything from a single person to a large team to collect and process data for review by lawyers in the shortest possible time. There is a particular emphasis in the interview on data involving specific jurisdictional challenges, which may narrow the field of those who can respond to your request if that is a relevant consideration.
The message here goes beyond Greg Bufithis’ initiative in launching his videos or Nigel Murray’s willingness to appear in front of a camera. It goes back to the message from Mark Surguy to the effect that you need to know what you will do when such a problem strikes you. It may not involve trans-jurisdictional issues; it will not necessarily require large teams; it may have no particular complications to it at all, judged by the standards of those who have prepared for this eventuality.
But if you have not planned for it, and you emerge from a hearing with an order requiring an urgent collection, or take a phone call from a client with an immediate problem, what will you do? Who would you ring? How will you reconcile the need to appear on top of the subject vis-a-vis your client with the blunt fact that you have never done this before and do not know where to start?
It requires no great investment of time or money to be ready for an eventuality like this. If I were a practice manager or head of department, I would lie awake at night for fear either that someone in my team will turn away good work or, perhaps worse, will take it on without any idea of what they are letting themselves in for. Videos like this are a good way to start.