Barristers, Berlin and the Bribery Act – an eDiscovery Compendium Part 1

The three words beginning with “B” in my title are a random selection from the top of my running list of things to write about.  They all have a connection with eDisclosure / eDiscovery which is not necessarily obvious (barristers and disclosure? Surely solicitors deal with that?).  The list might equally have read “Pennsylvania, Peck  and Model Order”, which would have been equally random and equally discovery-related.

I rarely do compendium articles which sweep up a lot of subjects. A mass of interesting things, however, has turned up about eDiscovery in the same week as I prepare for a run of events – seven of them, in six different countries in five weeks, with another shortly afterwards. Each of them requires at least an outline to be written; they involve liaison with others; not least, they require bookings to be made and some system to be created which ensures that I turn up in the right country, on the due date and with the right set of notes. I leave for the first of them tomorrow.

The result is a long article which picks up as many as possible of the strands which have been flying by. Google Plus will one day be a very good tool for this sort of thing. At the moment, my G+ audience would be about 10 people against the 200 or so page views per day on this blog and over 900 Twitter followers. A compendium article has the side merit of showing in one place how many different components of business life are touched by eDiscovery – which is in fact the theme of at least one of my talks. I break the article into two – this one about the journeys and their relevance to eDiscovery generally, and a second which flicks through the incoming material. Except where I am referring specifically to the UK rules, I will stick to the term “discovery’ and try and ignore the faddy word “disclosure” which came into our rules in 1999 in the curious hope that the label change would improve matters.

My conferences page shows what the events are and has hyperlinks where relevant (hyperlinks are the bane of my life and I will not repeat them all here).  In summary, I am doing a panel on early case assessment with Digital Reef in Washington and then going straight to Dublin where I am doing a UK and common law round-up with Senior Master Whitaker, and a US updates session with Browning Marean of DLA Piper US at eDiscovery Ireland 2011. After part of a weekend at home, I go to Berlin to give a speech to IQPC’s conference, on worldwide eDiscovery developments and why they matter for EU companies. I am back home for three days before going to Sydney for the Nuix Exchange, to join Senior Master Whitaker, US Magistrate Judge Andrew Peck, Craig Ball, David Cowen of the Cowen Group and others at an event which promises to be both intensely educational and extremely pleasurable.

I then see something of Australia for a few days before going to Singapore. I am speaking at InnoXcell’s Singapore conference on Monday, at an EMC event in Berlin on Tuesday and at a Bribery Act discussion, in tandem with Barry Vitou of Pinsent Masons, in Paris on the Thursday (Barry will also be in Dublin). Fiive weeks after setting off, I will be back at my desk for a few days – before setting off to IQPC Munich to moderate a panel on social media and discovery.

It all sounds great fun, doesn’t it, especially the Singapore on Monday, Berlin on Tuesday bit? The juxtaposition of events cannot be helped (and when this lot is over, that is more or less the end of foreign travel until LegalTech in New York, with UK law firm talks and a couple of UK events in between).

Why does it matter in any one jurisdiction what happens in the others? More specifically, how are talks to UK law firms informed by developments in Sydney, Singapore or Berlin? The answer lies partly in the rules; I try to avoid grandiloquent words like “explosion” and “massive”, but you cannot avoid them when you look at the statistics of data growth. As Jeffrey Friedman of Thomson Reuters put it to me recently, the data and the cost of managing the data is shooting up, whilst the value of the claims, and the resources (court resources as well as those of the parties) remain at best constant, and probably decline. It is great to take a five- or ten- year view, but civil justice systems around the world are getting buried. Even if litigation is seen as optional, dealing with regulators and with the domestic and cross-border implications of the various prosecuting authorities is not optional.

The traditional law firm model is under threat – Richard Susskind gives it five years before it falls to pieces, not least under the pressure of attacks from other business models taking great chunks out of the work traditionally done by solicitors. Whole jurisdictions threaten to take contentious work away from each other. Lawyers find themselves in competition with their own clients for parts of the discovery process, something accelerated by moves which will effectively make discovery an end-process process of in-house information management and GRC – that is one reason why EMC bought Kazeon, Symantec bought Clearwell and HP wants to buy (or does it?) Autonomy.

We have to pick each others’ brains on this, to study what other people are facing as problems and proposing as solutions. The US may have processes which the rest of us find hard to understand (that is, why they have them, not what they are), but it also has more thoughtfulness around the subject than anywhere else. Australia’s traditionally blunt approach to everything is now being applied to the management of discovery. Let’s borrow it, or at least understand what they are thinking.

Meanwhile, EU companies affect disdain for common law notions of eDiscovery, despite international business and regulatory implications; some US law firms purport to act in litigation without the most basic understanding of their own rules or knowledge of the cases; and, as I reported recently, parties to substantial UK litigation can start arguing about the scope of disclosure only three months short of a ten-day trial, with a bill for a single hearing of £47,000 on one side alone .

Lastly, the technology which could help manage much of this is ignored by many firms who write off the whole subject as too expensive without making any attempt to understand what the technology does, what it costs and what it can save. Thus, as the tide of documents and associated costs rises round their necks, as they come under pressure from alternative business models, as judges lose patience, and as the clients react with increasing severity against both the hourly rate and the number of hours, you hear lawyers around the world say “eDiscovery is too expensive and the judge won’t understand it”. You cannot say the first if you have not even enquired about the cost, and if the second is true – well whose job is it to explain things to the judge?

In the second part of this article, I will sweep up some of the recent developments which bear on all this.


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 Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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