How much does a lawyer need to know about electronic documents?

We all make judgements, conscious or otherwise, about the degree of skill or knowledge we need to acquire to conduct our business or, indeed, for everyday living. A number of factors dictate how much we feel that we need to know, ranging from professional qualifications to what excites our interest or curiosity.

We like to think that the chap who hovers over us with a scalpel has acquired a minimum amount of both book-learning and practical experience, and there are interesting NHS statistics which suggest, unsurprisingly, that particular types of operation have more successful outcomes in hospitals which do more of them. If you run a business, then the fact that VAT is inherently dull is no excuse for not knowing at least enough to keep your VAT returns in order. If you drive a car, you need to know the rules of the road and have some idea of the mechanical actions needed to make the car go and, more importantly, to stop.

Some things which are of great importance to others can safely be ignored. I gather, for example, that some Italian has just taken eleven English ball-kicking experts to Africa to highlight the inadequacy of Uruguayan opticians – a worthy endeavour, no doubt, and one which appears to obsess many people, but I do not feel that my life is much diminished by my ignorance of the subject. Not everyone would agree, on the other hand, with my view that everyone ought to know something of the politics of their own country – it is not necessary to be a political activist, or even to have an opinion, but one ought to know broadly what differentiates one party from another and what the issues are. The playwright Tom Stoppard, applying for a job on a newspaper, felt that he ought to express an interest in politics. Asked who the Home Secretary was, his reaction was “I said I was interested in politics, not that I was obsessed by it”. This line from ignorance through interest to obsession turns up in every area of life.

A number of things prompt this reflection. One, which I mentioned in a recent post, was the depressing realisation that almost no one at an e-disclosure conference which I chaired had heard of the practice direction to part 31 CPR or knew of any of the recent cases. Some of those I classify as the “incompetence cases”, to distinguish them from those involving any particularly deep understanding of the law, the procedure or the technology. The word “incompetence” turns up in one of those judgments (Earles v Barclays Bank); another refers to the competence and credibility of a party’s senior participant in terms which would make many of us think that he might decently retire to a locked room with a bottle of whiskey and a loaded revolver; another involved the failure to find documents in a clearly-labelled folder in the user’s My Documents. You could not make up some of this stuff.

Another prompt is an article by Craig Ball called Show no fear which has been widely circulated. Craig explores the extent to which a lawyer can delegate the understanding and execution of electronic discovery, ending with the line “You learned the Rule Against Perpetuities. You can learn this stuff”.  I set my sights a bit lower than Craig does, a reflection of the differences between our respective jurisdictions. It would be a good start if every litigation lawyer knew that there is a practice direction, that there has been some case law and that there is a mature market of suppliers. A select few might go one step further and actually read the relevant rules (about six A4 pages), skim the cases (they are referenced in this article)  and identify at least three providers of software and services whom they might contact in the not unlikely event that a case will cross their desks soon for which this knowledge, or its absence, might be the factor which determines whether you win the work, win the case, or have to make that awkward call to the insurers.

Many are put off by their perception that they must acquire a deep technical understanding of the elements which Craig lists in his article in order to deal with electronic discovery. If that were in fact so, then ducking the question is not really the answer – imagine that surgeon taking the line that modern developments in surgery are a bit hard to understand, so he won’t bother. You do not in fact need to understand the deep technicalities. An old article of mine makes this clear – see Do you need to know how the technology works? which includes similar points to Craig’s about the physical characteristics of paper and, as it happens, some parallels between legal practice and surgery.

Craig’s article is illustrated by a man clutching a tiger by the tail. There is more symbolism in that than you might imagine, as this page  shows. I was alert to the connotations of pursuing an obsession and of being unable to get off a tiger, once boarded, without being eaten, but I had forgotten the extract from Helen Bannerman’s 1898 book The Story of Little Black Sambo:

And the Tigers were very, very angry, but still they would not let go of each other’s tails. And they were so angry, that they ran round the tree, trying to eat each other up, and they ran faster and faster, till they were whirling round so fast that you couldn’t see their legs at all. And they still ran faster and faster and faster, till they all just melted away, and there was nothing left but a great big pool of melted butter (or ‘ghi,’ as it is called in India) round the foot of the tree.

That is a pretty good description of a US discovery dispute, isn’t it?

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Litigation Support. Bookmark the permalink.

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