I spent much of today digging out quotations from judgments whose theme was inexcusable e-Disclosure failures, which I need for a paper which I am writing. We have had a run of cases in the UK where significant costs have been incurred which fall, often on an indemnity basis, on the party which is in default of its obligations. My focus is not so much on the rules, important though they are, as on the waste of time and costs which follow inevitably from the failure to get a grip pre-emptively or at an early stage. My drafting exercise is taking a long time, not because examples are hard to come by, but because there are almost too many to choose from.
In some of the cases, it is hard to decide whether the failures were the result of incompetence, ignorance, or the hope of concealment – and that is really the point: if documents have to be dragged out of you, then it is unsurprising if you find yourself accused of bad faith. When the remedy, in the form of fast and efficient processing tools, lies to hand but has been ignored, then the imputation of concealment will hang over you when you are forced to admit that you do, after all, have documents whose existence you have hitherto denied. If a fraction of the money thus wasted had been spent in getting to grips with managing document collections, then the stories would have been very different. In one case, the indemnity costs payable by the defaulting party amounted to £1 million, that is, their opponents had demonstrated the waste of at least that sum for their work in pressing for proper disclosure. I am concerned at several levels, not least because I am paying for much of this as the taxpayer funding an evidently incompetent government department, but I am concerned also for litigation generally.
A certain ennui creeps in after an afternoon of copying and pasting paragraphs whose effect is more or less identical and universally downbeat. Almost a relief, then, to get an e-mail with news of a survey of the UK e-Disclosure market, no doubt reporting that UK corporations have got the message and are working to ensure that they are not the next to be publicly pilloried for failure to be ready to handle e-Disclosure.
Inevitably, of course, the message is to the opposite effect. Recommind commissioned a survey of 100 UK organisations with more than 1,000 employees in April; the result is a headline reading UK firms still not ready for e-Disclosure despite its increasing prevalence. Over the next hour, a dozen or so Google alerts arrive to tell me that the story is being picked up all over the place as, indeed, it should be.
The website of the Society for Computers & Law has a helpful summary of the Recommind survey results. I will take just three statistics:
15% can instantly assess the cost and risk of a particular e-Disclosure event
17% have no e-Disclosure capabilities whatsoever in place
13% admitted that no-one was in charge of provisioning for e-Disclosure
Of this last figure, Simon Price, European Director of Recommind, suggests that “there is perhaps no budget or the approach is to simply deal with any e-Disclosure requests as and when they arise – a dangerous tactic given that a single lawsuit can result in the collection and review of terabytes of data, and timeframes are often extremely tight”
As it happens, Simon Price was here in Oxford last Friday, showing me predictive coding in Recommind’s e-Disclosure product Axcelerate eDiscovery. I do not spend much time actually looking at applications, but the rate at which they advance on the problems means that even I am in danger of losing touch with what they are capable of doing. Who, you wonder, would court the risk and expense which appears from those recent judgments when applications like this exist to mitigate the risk? The answer appearing from Recommind’s survey is that most corporations of more than 1,000 employees court that risk.
I should, perhaps, make it clear that I am alert to two things – boredom with repeated warnings of doom, and the fact that applications of this kind themselves cost money.
The British as a race are not much inclined to listen to those who bring them urgent messages allegedly for their own good. The AIDS awareness campaigns of the late 1980s brought me the first realisation that our willingness to listen is in inverse proportion to the efforts made to persuade us of something allegedly for our own good, and that the more we are besieged with advice the less notice we take of it. Eleven years of being harangued and bullied by New Labour has done nothing to increase our willingness to pay attention (on which, had you spotted that “bigot”, the Prime Minister’s term for those who disagree with him, is an acronym for Brown Is Going On Thursday?). In that context, perhaps we should not be surprised that judgment after critical judgment should roll out of the courts with little effect on the thinking of those responsible for litigation readiness (and, obviously, no effect at all on companies who have no-one responsible for litigation readiness).
As to the second point, there is of course expense involved in being prepared for litigation whether pre-emptively or when it strikes. A decision to make no investment in litigation readiness may be a perfectly proper decision, but “decision” implies that someone has weighed the risks against the expense and reached a considered view. If 13% of large companies do not even have someone with budget responsibility for this area, then it seems unlikely that this exercise is taking place.
I had more reason than one for referring you to the SCL’s summary of the survey. The related items on the right side of the page include articles about recent developments in e-Disclosure whose juxtaposition against the survey results is timely.