Clearwell, ICE, FOIA and NDLON

If the jumble of names and initials in my heading means nothing to you then move along to the next article, because this one assumes that you know about it. If you do know about it, then I do not need to recite the curious story of the disappearing blog post and the subsequent retraction and apology. I watched the flow of critical comment which followed, all of which reinforced my initial reaction, which was to sit it out and await developments before joining in. I like to know how deep the water is before I wade into it.

I have seen enough of these stories to know that they have a reasonably predictable arc. For one thing, they never emerge in relation to unsuccessful companies; what gives them legs is the fear of competition, and no one bothers to attack the weak. For another, the rebuttals come in slowly, unlike in politics where much unhelpful heat is engendered by the frenetic need to get the counter-attack in at once. The critics are hampered by a lack of facts, the defenders by client confidentiality.  It is all part of the knock-about of competition, of course, and most of the players give as good as they get. Occasionally, the challenge of doing an elegant stiletto job on a rival can result in new ways of describing the benefits of one’s own product. The comments never seem to make the slightest difference to the market share of any of the players, however, inducing merely a “plague on all your houses” reaction from a generally mature audience whose buying decisions are made on much deeper grounds.

Twitter brings you every twist and turn as they happen. The trick is to filter the fact from the assertion, the partisan from the objective. The next development of substance (of apparent substance anyway) was the publication of the so-called Pavlik-Keenan Declaration which, as a formal court document declared “under penalty of perjury”, brought expectations of factual accuracy at the least. The fact that the relevant part of its story seemed inherently implausible did not put me in a position to argue with it. The comment around it was relatively muted, which suggested to me that others too were unsure how far the story would run.

Last week brought the expected article by Aaref Hilaly, CEO of Clearwell, headed Clearwell, NDLON v ICE, and the Pavlik Keenan declaration which, for the first time, allowed me to see both sides of the story (my degree subject was history, don’t forget, so I am predisposed to look for balance and the occasional solid fact). That referred to another court document, the declaration of Ryan Law which corrects those parts of the Pavlik-Keenan Declaration which struck me as implausible when I first saw it, and sets out some points which had been ignored in most of the earlier chatter.

I do not have to take sides, draw conclusions or make decisions. There is more to come on this one and, as I have suggested, a few hard facts are an indispensible component in any story. It was obviously necessary for me at least to mention it all at some point, but you will note that I have got to the end of my article without saying anything about the case itself. That is the trouble with these inter-provider spats – they take all our eyes off what really matters.


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
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