Knowing that Master Whitaker and I were going to be in Sydney for the Chilli IQ eDiscovery conference, Eddie Sheehy of Nuix invited us to speak at a lunch organised by Nuix and KPMG. The venue was a room on the 15th floor of KPMG’s office overlooking the quay at Barangaroo and the mouth of Darling Harbour, and the audience comprised senior people from large financial and other corporations.
I like this kind of event, because it gets to audiences who are capable of long-term decision-making. Once litigation has commenced or a regulatory investigation is under way, the range of options becomes limited – you are where you are in terms of preparation, and there is often no time to choose the lawyers, decide on the technology or take a long view on the strategy. It is like being a general in the field the night before the battle; your options for deployment and tactics are constrained by what has been done or left undone in the past. The level of decision-maker round that lunch table is in a position to see, for example, the aggregated costs of last year’s litigation, which gives some incentive to plan for next year’s – and to do something about it.
Brett Webber of KPMG gave a brief introductory talk, referring in particular to the investment which KPMG is making in technology, and Eddie Sheehy explained that Nuix is a successful Australian technology company whose products enabled fast and accurate processing. The virtue of accuracy is obvious; I pointed out that speed gave you the chance to make multiple passes if you needed to in order to get at an answer which minimised the results for review without sacrificing defensibility.
My message was a short one with three main elements: access to justice generally seems to connote the rights of small individuals, but corporations of all sizes were also entitled to speedy, just and cost-effective remedies from the court; Australia was not, as many there seemed to think, behind the rest of the world in relation to ediscovery, and the Attorney General’s review of discovery is evidence of a determination to tackle this most expensive component of litigation; despite this evidence of good intention at the top level, progress would only be made if court users drew attention to perceived defects and lobbied for change – the road-block would not be the Attorney General but those who should impose and enforce the rules.
Steven Whitaker focused on a parallel route by which companies could drive change. Whatever defects may exist in the system of rules and procedures, the cultural change had to come from the lawyers. He described how the post-1999 UK rules changes had encouraged a cards-on-the-table approach which had done much to reduce unnecessary and expensive point-scoring; discovery had remained the one area in which co-operation had not happened. We had or would shortly get, the rules designed to foster (and if necessary impose) a cooperative approach, but there was a long way to go in educating the judges responsible for case management. We did not have to wait for that to happen; lawyers should take the lead in this. If they did not, then it was for the clients to make them do so, both by imposing the use of appropriate technology and by dictating a strategic approach which removed procedural infighting in order to get more quickly and cheaply to the issues which they actually cared about.
This is a weapon which lies immediately to hand. Driving change through the rules and through the judges is a slow and frustrating experience, like trench warfare in the fog. The decision-makers seem at last to have acknowledged that most documents are electronic, but they have simply fallen back to the next defensive line, conceding only that there are “exceptional” cases in which judges should exert hands-on control. Whilst we settle down to breaking that line at a procedural level, the clients could jump right over it by making it clear to their lawyers that their objective is winning the case, not just proceeding with the procedures. That requires astute use of the rules and being on top of the technology; the next phase in this war is to learn how to outflank judges who appear more part of the problem than the solution.
I would have liked to stay on and discuss these points, but I had a plane to catch and had to leave before the coffee came. My thanks to KPMG and to Nuix for the opportunity to speak to such an influential audience.