Although it may seem that I spend most of my time in the departure lounges of the world, travel is a relatively small element of a typical month’s work. I am back to the meetings, the platform and media opportunities and the writing which fulfil my obligation to find out about e-disclosure problems and solutions and to try to match the one with the other. The travel informs that, but it is not an end in itself. I take the opportunity to summarise what the ends, and the means, are so far as I am concerned.
Some semblance of normality descends after a month which kicked off with the launch of the UK eDisclosure Practice Direction and included visits to Washington, Toronto and Singapore. It would be easy to get the impression that travel is my main activity, but last month is, fortunately, not representative. I clocked up 27,936 air miles (the distance around the equator is 24,783 miles), and two of the conferences involved a fair amount of activity – planning in advance, taking part in sessions, and writing them up afterwards. This is, nevertheless, an activity which is ancillary to my main role.
Many years ago, I did a stint in Uzbekistan for an EU-funded project. One of the legacies of that is the deep hatred of the whole EU institution which you may have detected – the waste, the expensive, self-serving bureaucracy, and the very strong feeling that a large group of elected representatives and appointed officials have created an interfering monster whose primary function is to give them lucrative employment. The other legacy is that, for years afterwards, many people assumed that working in Tashkent was my main occupation, whereas it was in fact run in parallel, and only briefly, with litigation software development and consultancy work in the UK.
The same is true of the trips I do now – they are important, interesting, non-trivial in time terms, and allow a two-way traffic in understanding e-discovery problems and solutions, but they are not my main function. They are not compatible with writing, for which I require absolute silence, no distractions and a good supply of coffee and cigarettes, none of which are available on aeroplanes.
My primary function is the encouragement of electronic disclosure in the UK and the liaison between courts, lawyers, clients and suppliers which that requires. In my first two working days after getting back from Singapore, I did a video recording for the College of Law, had lunch with Malcolm Durant and Sati Soni of Iron Mountain, sat on a panel for Clearwell at KPMG and, most important and interesting from my point of view, attended a meeting to discuss a strategic approach to litigation in the new world which follows Goodale v The Ministry of Justice and the new eDisclosure Practice Direction. I say “most important”, because these meetings are a much more focused form of influencing than any amount of platform speaking or writing. The latter are, in a sense, tasters to encourage the meetings. One of the reasons why the travel and the conferences appear to dominate my blog posts is that they are full of the names of the people and companies I come across, whereas I keep client names to myself.
The message derived from these different sources – the conferences, the reading and the meetings – is that there is an opportunity to change the way we manage this most expensive component of litigation. Goodale shows us three things: firstly, an approach which identifies (using intellect as much as technology) the most likely sources of important documents, and works outwards from there in an iterative manner if necessary (contrast this with the approach which collects and processes everything and then attempts to identify what matters); secondly, Goodale encourages us towards the use of appropriate technology which is an adjunct to (not a substitute for) the thought processes of the lawyers; thirdly, Goodale emphasises the importance of informed cooperation. There is no implication here of surrendering tactical advantage or giving away ground, simply that time and money can be saved if parties agree the parameters of the e-disclosure exercise before they embark on it rather than fight about it afterwards, particularly if the cooperative approach results in the disclosure of fewer unnecessary documents.
This requires some new skills – an understanding of what technology can do, a better knowledge than presently exists of what the rules require and allow and, hardest of all, a cultural change in dealings with opponents and the court. The traditional approach makes your opponents the enemy and the judge a kind of moving target whose likely decision can only be guessed at. I was a litigation lawyer myself, and have nothing against the idea of confrontation with the other side over the issues or of wrong-footing them by superior skill; it makes no sense to me, however, to run up the clients’ costs over the mechanics of disclosure. As to the judge, I would rather influence his decision as to case management than take my chance that he will pull the right answer out of the bag on his own – electronic disclosure is new to him as well as to you, and when I say that we can “change the way we manage this most expensive component of litigation”, I include the judge amongst those who might find a better way forward.
There is a second strand which runs through this in parallel with the understanding of rules and technology. That concerns how best to marshal the various skills required to manage document review in litigation. Purely legal skills are no longer enough – one needs to be skilled in the mechanics of search. If one was building from scratch the ideal model for a project team, one would have these two functions working hand-in-hand, bringing their respective skills to the task, in place of the present model under which lawyers add a hefty handling charge to the management of documents which are, in any event, those of the client. One solution, which many clients are moving towards, is that the client takes increasing control of the document management process. The only way that lawyers can head off this shift is to come up with a model which works better.
I can illustrate how what is said at the conferences can illuminate the client meetings. One of the most interesting messages which I have heard at all these conferences was reported in my piece on July’s Hong Kong conference (see A call to arms for ediscovery in Hong Kong). Panel members were asked how they tackled a large e-Disclosure exercise, and Scott Nonaka of O’Melveny & Myers simply referred to his firm’s arrangement with search specialist H5 under which, in appropriate cases, the law firm deals with the law and the search experts handle the search. I have long been urging firms to team up with a supplier or a panel of suppliers with exactly this in mind. The main piece of written work on my desk at the moment is a paper for H5 which will explore how this arrangement works for the benefit of the clients.
There is plenty else to write about – I am booking a lunch with Lisa Burton to find out about Grant Thornton’s acquisition of Legal Inc; Richard Susskind’s predictions about the future of law have had another airing; the UK case which I reported recently is not the only one in which the UK courts have recently considered disclosure; my mailbox fills with press releases and alerts about interesting articles. There is more than enough to write about.
Nor is there yet an end to this year’s speaking. On 15 November in London we have the Sixth Annual eDisclosure Forum run by Thomson Reuters and Sweet & Maxwell and chaired by Browning Marean of DLA Piper US, George Socha of EDRM fame, and me. This conference differs from the rest in that Browning, George and I devise the whole thing from a blank sheet of paper, aiming to bring the best of US and UK thought to UK e-Disclosure developments. Panellists include two judges, litigation support managers and technology experts – the program is sponsored by AccessData, Epiq Systems, EMC Corporation, InsideCounsel, Clearwell and Daegis. The speaker list includes objective and informed contributors from some of these providers.
Immediately after that, Browning and I go to Washington to sit on a panel at Georgetown Law CLE Advanced E-Discovery Institute 2010 on 18 and 19 November, whilst the end of the month takes me to Munich for IQPC’s Information Retention and eDiscovery Exchange on 29 November to 2 December, where I am talking about cross-border issues. In between, I have a number of engagements at law firms in London and the regions, primarily to talk about the impact of the practice direction and Goodale.
That is probably enough to be getting on with for a month.
PS: The aeroplane in the picture is not one I have recently been in. It is a Douglas DC3 which passed over me a few days ago. The carrying of passengers is now banned in these planes – see the reference to interfering EU bureaucrats above.