A trip by train to talk to a regional law firm gives an excuse to recommend the iPad as a library of those documents you will never read at your desk, and to recommend two papers in particular which address technology-assisted review. The message for the lawyers is not just of risks but of opportunities; the point is not whether you do document-heavy litigation but whether you could win work you do not already do. What case does not involve some electronic documents?
All my trips to foreign places (Orlando, Frankfurt and Hong Kong in May and June, for example) and the frequent references to developments in other jurisdictions do not detract from the fact that the flag which I fly is the eDisclosure Information Project, with its roots firmly in England & Wales. That word “disclosure”, part of the late-1990’s fad for changing the names of things in the hope of making them better, does at least serve as a discriminating label for the purpose of Google searches by those wanting to know more about it, so people can easily find me. One of the pleasures which results from this is to be invited to go and talk to a law firm, particularly one which recognises the potential for new work as well as the potential for risk.
No eDisclosure talk is complete without references to risk – risk of losing costs, risk of damage to reputation, and risk of actually losing the case because of disclosure failures. Having dangled a few of those, like the corpses of malefactors on an 18th century gibbet, I like to move on to positive things – of opportunities to be grabbed, work to be won, and reputations and careers to be enhanced for individuals, as well as for the law firms. I will happily talk on my own for an hour – four hours, indeed, if anyone will listen – but the most interesting and useful sessions are those done in tandem with a provider of litigation services picked from the list of those who sponsor the eDisclosure Information Project. It is even better if somebody else does the picking, either where the provider takes me along on their appointment or, as last week, when the law firm asks me if I would be willing to turn up alongside their choice of provider. This trip was to the Midlands in the company of Ben Hammerton, Senior Business Development Manager for Epiq Systems. It was the second visit by both Epiq and by me and it is always good to be asked back somewhere – it says something positive about the first visit and it gives the opportunity to expand a little on areas already covered.
Every element of Britain’s railways, from government down to the train operating companies, is run by incompetent fools, and although this journey in fact ran to time, it is necessary to allow wide margins to be sure of arriving on time. One therefore needs to allow a day to go anywhere, and days are precious. The iPad has transformed train travel for me. I can read The Times, keep up with Twitter and watch the blue dot which represents the train streaking at speed through an aerial view of the landscape. Best of all, however (and a standalone reason for having an iPad so far as I am concerned) is the ability to carry around with me the kind of articles which deserve careful reading. I park these on Google Docs as I find them and can download them at will into an iPad app called GoodReader. I am not much good at reading in my office or at writing away from it, and an iPad full of articles is the answer when travelling.
The most important topic around at the moment is judicial acceptance of technology. Like Biblical seers watching for a new star in the East, everyone seems to expect that judges are suddenly going to give their express endorsement to a specific type of technology so that we can all use that as a precedent upon all occasions thereafter. We are wasting valuable time, meanwhile, in which we could be articulating to clients, to opponents and to judges the arguments for our particular use of our particular technology for our particular case today. On my journey I read recently published papers which set out the scientific basis for saying that manual review, far from being the Gold Standard, is an inadequate, inaccurate and grossly expensive way of arriving at the wrong answers. The papers in question are Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review by Maura R. Grossman and Gordon V. Cormack and Faster, better, cheaper legal document review, pipe dream or reality? by Thomas I. Barnett and Svetlana Godjevac formerly of Iron Mountain but now of Autonomy. We do very much need this scientific underpinning for our assertions, but documents like this are not for the fainthearted and, served up raw as it were, have the potential to put off those who need to understand the relatively simple messages which the scientific complexity might mask. I include links to them here, but will shortly be doing a post which extracts the practical implications from these well-argued and properly-sourced contributions.
My approach at these sessions is to move very quickly through a large pack of slides. At the session itself, the slides are largely for my benefit – I envy those who can talk for an hour with no prompts but, for formal occasions at least, I like slides to keep me in sequence without missing anything but without using a script. Less formally, when there is no agenda to get through, I am happy to just talk, which is handy on those occasions when I get thrown in as a supernumerary member of a panel at the last minute or when somebody shoves a microphone into my face. The other value of slides, of course, is that some written materials are required in any event for CPD purposes.
The core topics in my law firm talks are the rules (and specifically the new e-Disclosure Practice Direction and Questionnaire) and the cases. The conventional line is that the Practice Direction imposes new burdens on solicitors and that the cases are a source of significant risk to those who do not know what they are doing. The idea that the Practice Direction imposes burdens which did not exist before is simply wrong except, of course, for those who were unaware of the existing rules. The cases do indeed provide warnings, but they made no new law, involved no failures of technology, and could have been decided on the strength of the overriding objective, the general duties of cooperation and the obligation to be proportionate, without recourse to any eDisclosure-specific elements. The rules, I say, are important, as is the codification of the technology processes in the Electronic Discovery Reference Model (EDRM), but neither of these is as important as the objectives – the clients’ objectives and the overriding objective.
The message about technology involves a brief description of the primary tools, coupled with the suggestion that every firm ought to have seen some examples of what technology offers (Lord Justice Jackson made the same suggestion for judges in his Costs Review); I suggest that firms should have at least one person who is the subject-matter expert (just as they do with other areas such as money-laundering), and a connection with two or more service providers so that there is somewhere to turn instantly if a problem arose.
Electronic data is not just Word files, spreadsheets and e-mails: Twitter has been the subject of injunctions; Facebook keeps turning up as a source of information contradicting evidence given in proceedings; people bring their own devices to work. If these things seem remote from your idea of discoverable information, take a look at the definition of a “document” in the rules.
I end my talk with a reference to trends which can be seen as a threat or as a challenge depending on your point of view. Clients are taking at least part of the disclosure process in-house, and even barristers are taking off the shackles of 18th-century rules and becoming allowed to run business operations beyond mere drafting and advocacy. You can challenge these trends by offering something better; you can run with them by working with those who offer complementary services; or you can carry on practising as if a “document” was always a piece of paper in a ring binder.
I skipped my usual technology section and handed over to Ben Hammerton, who described briefly the capabilities of applications offered by Epiq and its rivals – and Epiq has always been good at stressing the universality of these tools rather than simply trying to sell its own. I have sat through sessions with providers whose purported educational message very quickly turns into a sales pitch, and you can sense the audience drifting away with every line. Ben inevitably illustrated his talk with examples from Epiq’s IQ Review service and its review platform DocuMatrix, but he presented it as simply an example which lay to hand rather than a selling exercise.
We had some good discussions afterwards. One of the reasons for going on these visits is to listen as well as to speak – how else could one know what the lawyers are facing? The main aim is that the lawyers will know just enough to recognise a problem when they see it and to know where to turn if a problem arises. I will do as many sessions like this as the diary will allow.