The paucity of posts lately may lead you to think that all is quiet on the e-disclosure / e-discovery front. It is in fact a symptom of the opposite – there has been more than enough to keep me amused, and on things which seem to point to an increase in e-disclosure activity. My side-interest in civil liberties has provided a diversion, and I took a daring Saturday off to go to Leeds for a Phoenix Fall gig.
I have recorded October’s trips to Washington, Canada and Singapore. November has brought a London conference and one in Washington which I have yet to write up. I am just back from Munich for IQPC’s Information Retention and e-Discovery Exchange which I will also write up shortly.
These trips are the icing on a cake whose main ingredient is domestic and below the surface. I have been to a couple of major regional cities to talk to firms with the potential to capture work from larger but less agile players, and done the same with some London law firms. The expressed motive behind their invitations is to hear about the Practice Direction and Electronic Documents Questionnaire, which gives me the opportunity to suggest to solicitors that we have a window in which we can shape e-disclosure as we think it should be. The window will close if we start seeing judgments which apply old principles to new problems.
You will see shortly from my pending report of an impressive judicial panel at the Georgetown Advanced e-Discovery Institute that the developments in England & Wales – the Practice Direction, the Goodale judgment, the Birmingham costs-management trial, the spate of cases – are exciting attention in the home of electronic discovery; all we have to do is make the practice conform to the framework of rules which others are beginning to envy. If there is plenty to fear (have a look at these cases, for example), there is also opportunity to capture work from others and to offer new skills to clients.
Also bubbling along is the Australian Federal Discovery Review, now at the point where submissions are invited; some of us who were involved in the UK PD have offered input; HH Judge Simon Brown QC is planning a major e-disclosure event in the Inner Temple in September 2011 (contact me if you are interested in this and have not already been told about it); it all helps fill the days. In spare moments, there is public protest and political pusillanimity to watch.
One of my UK trips was to Manchester. “You must go to St Peter’s Field”, my mother said, showing that being aged closer to 60 than 50 is no protection from maternal instruction. One of the stories from my mother’s knee was of the large crowd which gathered in St Peter’s Field (now built over) on 16 August 1819 to demand electoral reform. England was then in a deep post-war recession; jobs were few and badly paid; protectionism kept food prices high and the authorities feared civil unrest. More than 60,000 people came, many in their Sunday best, having been told to come “armed with no other weapon but that of a self-approving conscience”. The magistrates took fright and ordered the cavalry to break up the crowd, which they did in much the same style as at Waterloo four years earlier, with sabres. Fifteen died and over 400 were injured.
I would not have mentioned this but for what happened shortly after my visit to the site of Peterloo, as the event was ironically called. A tweet tipped me off: “I did not vote Liberal to have mounted police charge at kids”. Sabres were not used on this occasion, but you get a feel for what Peterloo looked like from this video showing a London demonstration of students being charged by police on horses. No television cameras caught the charge, and the police at first denied that it had happened. It is not clear whether this was mere dishonesty or, more alarmingly, that no-one thought to mention, when the sweating horses and excited police riders got back to base, that they had had such fun.
The swings of opinion are interesting. I have already mentioned the first student riot, when the police turned up in time to sweep up the broken glass, put out the fires, and arrest what appears to be a random selection of people found in the area. I have an ambivalent attitude; my own children have debt enough from university fees and I cannot be unsympathetic towards those who face three times their burden; the violence of the first riot swung me against the students; it is not clear whether those who, at the second event, charged the police behind a torn-down length of railing, were violent vandals attacking worthy guardians of the peace, or cold, tired, frightened children desperate to escape uniformed brutes with a reputation for thuggery.
On the political front, the readiness of the Liberal Democrats to ditch their election pledges is contemptible – Toytown politicians who squeak bravely in opposition might well have a problem when unexpectedly given power; the contempt is for the way they seem willing to try reconciling the surrender of principle with the moral high ground by supporting the fees increase in Cabinet but abstaining on the vote. I am generally stoical about the cuts needed to clear up after a Labour government – vast public debt and a screwed-up economy is the historic norm even without Gordon Brown; properly equipping our forces in wartime and looking after their wounded and their widows comes ahead of students. Watching mounted police charging at young people as they exercise their right to protest, however, is what swings it for me.
There was a recessionary message in our weekend trip to Leeds. The primary motive was to see the Phoenix Fall, for whom our son Charlie is the drummer, and who were doing a pub gig in their old university city. I’ve seen quite enough of hotels recently, but thought it would make a nice change to stay in one with my wife, Mary Ann. We could not get a room for Saturday night, however, despite recession, despite the cuts, and despite the north-south divide of which we hear so much and which undoubtedly exists. Government adviser and former minister Lord Young was attacked for saying what is obviously true – that many people are doing well despite the recession; David Cameron could have embraced this as a positive message instead of taking fright and hastily ditching an adviser who had himself gone from prosperity to nothing and back again in an earlier recession. If every upmarket hotel in Leeds is sold out in November, apparently to people whose visits were for shopping, then Young must have had a point.
Mind you, I can see why the girls of the North East need to go shopping – many of the poor things out on the snowy streets of Leeds on Friday night had almost nothing on. Their idea of “dressing up” for a winter night out displayed more flesh than I have seen on summer beaches. Prurience vied with a wish to send them off to Marks & Spencer for some warm underwear – any underwear at all would have been a good start in some cases.
There being no room at the inn, and with the weather closing in, we headed south, keen not to be caught too far from Heathrow by Monday morning, and stopped for tea at a National Trust property called Clumber Park (and see Google map). It is not strictly my job to promote tourism in Britain’s regions, but I will have a go anyway. The house was demolished in 1938; what remains are grounds which would be stunningly beautiful even without the heavy overnight snow. By the time I come to write this, I have seen enough snow for the year, perhaps because the last thing I read just before my delayed aeroplane thundered down a snow-covered Munich runway yesterday was a Private Eye article which referred to the Munich air disaster of 1958 (which occurred on a snow-covered Munich runway). Clumber looked very beautiful under the snow.
It was no bad thing, in fact, to have Sunday to prepare for the IQPC eDiscovery Exchange in Munich. I was due to moderate a panel on US-EU data collections and to speak on the cultural differences. Some of the things said at my recent Georgetown panel prompted me to re-read the Aérospatiale judgment, and I decided that not all of my cultural illustrations were necessarily appropriate for the local audience, so I was glad to have the chance to revisit my slides.
There were shiny black cars outside the Westin Hotel in Munich and lots of shiny people in yellow/orange ties inside. In the UK, people with yellow/orange ties make one think “I used to have principles but I traded them for a shiny black ministerial car”; it proved to be a convention of car rental salesmen and not the Lib Dem conference.
This was the last of a series of conferences which, between them, have provided much food for thought without the opportunity to write it all up. That is my next task.