Sometimes an unconscious theme develops during conferences. Appropriately, perhaps, given the “IQ” element in the organiser’s name, the point which recurred in Sydney was the use of human intelligence in parallel with the processing power and clever technology to get as early as possible to the things which matter. That phrase “as early as possible” came up a lot, not least because (as I noted when I commented on it – see Terms of Reference for Australian Discovery review), the Australian Attorney General’s Terms of Reference for the pending Discovery Review uses those words three times in their few lines.
Beth Patterson of Allens Arthur Robinson observed, for example, that one might be able to count whole directories in or out by having someone with the appropriate skills and a bit of brain just look in them; if they are patently irrelevant, why include them in the future stages? Michelle Mahoney of Mallesons said that dependence on raw processing power alone meant taking the thinking out of discovery; computers are very good at many things, but they cannot think. Eddie Sheehy of Nuix, unsurprisingly as strong an advocate of intelligent computing power as you will find, recommended giving a couple of the team’s best brains a day or two towards the end of the exercise to try and pick holes in the result by going in any direction they thought fit, trying to find documents or categories which had been wrongly included or excluded. For the third conference running, Equivio (who were not involved at any of them) was praised for the way its products used the best of technology and intelligent human input. And I used my stock phrase “the best technology lies between your ears”.
I quite like opening the batting at these conferences. The audience is awake, no-one can have stolen your thunder by covering your chosen ground, and a keynote speaker has licence to roam more widely than one with a defined topic. I merged my session with that of Senior Master Whitaker – I gave a short introductory speech, and used the rest of the double session for an interview-style discussion with Steven Whitaker about UK developments. My topics in opening included the international community of interest in ediscovery; the relative importance of rules and processes on the one hand, and discretion, proportionality and the clients’ actual objectives on the other; and the changing relationship between clients, their lawyers and the technology suppliers, with the possibility that the lawyers will get marginalised in that relationship. Steven Whitaker took us through the key points of the Jackson Report, the range of disclosure options in the draft Rule 31.5A, and the proposed Practice Direction and Questionnaire. We took the cases between us, Steven Whitaker covering the ones which turned on the law, and I taking those in which stupidity, ignorance and incompetence were the main factors (there is something about being in Australia which encourages plain speaking).
One does not get to be a judge in any of the relevant jurisdictions by being either stupid or ignorant; some other term is needed to describe judges who close their minds to the costs of handling electronic documents at a time when most documents are electronic and when a very high proportion of the costs is consumed in handling them. It takes a certain wilful blindness to think that it is only in “exceptional” circumstances that parties should be made to exchange information about what they have got. How much? In what form? What difficulties are anticipated? What date ranges? Which custodians? What key words or other search methods are proposed? All these things go to early identification of what really matters, and for as long as we have judges who hope that the problems and their costs will just go away, litigation will continue to be more expensive than parties can afford. It is all very well punishing parties in retrospect for taking what then appears as the wrong course, but judges have the power and the duty to anticipate wasteful conduct.
The idea that the ostrich puts its head in the sand to conceal itself from danger is not merely a cliché but apparently completely wrong. What they are doing it seems, is listening for underground tremors which may indicate what is coming. To suggest that judges are like ostriches in relation to ediscovery is to overstate their enthusiasm – they do not have much interest in what is already here, never mind what is coming. This is a problem common to all jurisdictions – the way to progress is blocked by judges (most of them, that is – there are exceptions everywhere) who are woefully and wilfully unfit to exercise any kind of supervisory function. I am sure (to revert to my earlier point) that these people are neither stupid nor ignorant. There must be some other explanation.
One of the points which I made forcibly in my opening was that our presence in Australia involved no claim on behalf of the UK that it was any more advanced than anywhere else. As I did last year, I ran through some of the things which Australia had given the rest of us, from software (RingTail, Nuix , Ediscovery Tools) to people to rules. The present round of attempts to improve the procedure began in 2008 with Australia’s Practice Note CM 6. Since then we have seen Singapore’s Practice Direction 3/2009, and various Canadian developments, and it may be that the UK will take the baton with our new PD and Questionnaire. The next significant round after that, however, would be whatever comes out of the Discovery Review recently initiated by Australia’s Attorney General. A country willing to move to that so soon after a whole new practice direction is hardly ignoring the subject.
Some of these themes resurfaced at the end of the day, when I led a panel session involving Master Whitaker, Beth Patterson, and Eddie Sheehy of Nuix. If the bulk of it fell on Steven Whitaker, that is because he had a lot to say which the audience wanted to hear about, and Beth and Eddie added the law firm and the technology perspectives to the judicial lead. The chairman, Brett Webber of KPMG, sought democratic approval for an extension of the 45 minutes originally allowed for this panel. I needed that approval because if I am running a session, it ends at the advertised time or earlier. If I say there are two minutes left for questions and you take three minutes to express yourself, then you will be bloody lucky to get to the end of the question, let alone get an answer.
Of the other formal sessions I went only to Beth Patterson’s one called ECA: Investing in Preparation and to hear Michelle Mahoney on US developments, not least those arising from the recent Duke Conference on US civil litigation. The reason, as always, was that there were many people to see.
I had coffee with David Bowie of FTI Consulting to find out what FTI is doing back in the home of its flagship ediscovery product RingTail Legal. Much more than just document review it seems – I will write more about that in due course. I went to see Allison Stanfield at e.law’s offices and met some of the team there. Greg O’Reilly of LDM Global turned up as we were having coffee, recently moved back to his home country 15 years after he and his brother Chris O’Reilly set up LDM in London and the US. London now has a management team strong enough to allow Greg to go back to Sydney. Master Whitaker and I met up with Andrew King of Bell Gully in New Zealand, to talk about practice directions and the like. It would be good to welcome New Zealand to the informal, but gradually hardening group which has international discovery rules as its subject. I met people from law firms and from suppliers – short conversations with well-informed strangers adds much to one’s understanding of what is going on. Eddie Sheehy took a group of us out to a very pleasant dinner on Wednesday.
How do you calculate the value of all this? If you were the accountant for International eDiscovery Discussions Inc., how would you value all the talk and the absorption of information against its cost? The accounts are incomplete of course – the conference funded the travel and accommodation which takes out the biggest head of fiscal expense, and our willingness to make the journeys goes in a “pain and suffering” column which is alien to accountants (I should explain that I am, as I write this, somewhere above Lvov, 20 hours into a 22 hour flight home. I am tired, cold, aching and hungry, and I know that what is left of the week-end when I get back from Heathrow will be spent clearing the decks for next week. I am not much good at this kind of cost-benefit analysis. Do I enjoy it? Do I learn something of value? Do people seem to appreciate it? These things are enough for me, and if I can say that at this stage in the journey then I must mean it).
Looking back over this article, it seems more diffuse than usual. Worse than that, in structural terms, it opens with a strong statement about a conference theme to which it never returns, refers to but does not explain what I said in my keynote speech, mentions in only the broadest terms what we talked about in the two sessions we did, asserts that Australia will take the international ediscovery lead on the strength of a few words in a ToR, damns judges with faint praise (they are not stupid or ignorant), lists a few people I met, complains about the downsides of flying, and baulks at putting a value on the whole shooting-match.
I am unrepentant. Do you know that you can start watching Lawrence of Arabia as you leave Sydney and only be crossing the northern coast of Australia as the final credits roll? Try writing anything after that. You get the point anyway – there is a lot going on in the international eDiscovery world and Australia has an important place at the table.
The photograph shows me, Master Whitaker and Brett Webber of KPMG. I am not quite sure what I am doing at this point. The uncharitable might assume that I am having a stretch preparatory to nodding off. I think in fact I am pummelling a notional judge about the head, perhaps for suggesting that his duty of case management was fulfilled by sending the parties away to sort out their discovery by themselves. The other photographs above show respectively me and Master Whitaker and Michelle Mahoney of Mallesons and Eddie Sheehy of Nuix.