As comments go “I checked this morning and saw that you have done no blog updates” ranks very much higher than “Oh, do you keep a blog?”. The observation came, however, from someone who was also attending the Nuix Exchange in Sydney and sharing its very packed programme, and if even he could not see why I had no time to write blog posts, then perhaps I ought to add a little to the explanation given in my last post.

I arrived in Sydney at dawn on Saturday but without having reported on the last three conferences which I attended – the Masters Conference in Washington, E-Discovery Ireland 2011 in Dublin and the IQPC Forum E-Discovery in Berlin. Not every conference, still less every conference session, is worth writing about, and leaving some distance before writing about them helps one to focus on the points of lasting significance. It is equally the case, however, that I owe new readers some elements of the back story and of the continuing themes, even at risk of repetition for those who have been here for a long time.

The Masters Conference was interesting because separate sessions were devoted to each of the current big e-discovery themes. Dublin was important because it was Ireland’s first e-discovery conference. The Berlin event illustrated (yet again) the gulf which exists between common law (and particularly US) discovery and EU (and especially German) attitudes to handling data.

The Nuix Exchange was different from all these, as an assembly of people deliberately chosen to try and move the discussion beyond the present and into a future which is coming whether we like it or not. I am not going to steal my own thunder, as it were, by giving now a potted version of the fuller reports to come, but I can give a taste of what was covered here.

The themes are captured by the titles of some of the sessions – Re-imagining EDiscovery: Potential, Trends and Future Directions was the title given by Craig Ball to set us thinking about it less about what has gone wrong and more about what could be different. David Cowen of the Cowen Group took the Re-imagining E-Discovery title on into a collaborative discussion session; you have to keep on your toes with David because he asks for views and comments on the fly and you are stuffed if you were looking out of the window or checking your e-mail. I led a judicial panel with judges from the UK (Senior Master Whitaker), the US (Magistrate Judge Andrew Peck) and Australia (Justice Emmett) of which I will write more in due course. If that was interesting, and people seemed to think that it was, it was even more so to involve the US and UK judges in the discussions about the corporate decision-making and the problems faced by those with responsibility for information governance within companies. One wishes that more judges spent time, as these two did, to understand the issues which confront those responsible for the data which ends up in due course as the subject-matter of discovery disputes. A US corporate speaker was heard to say “Can we clone Judge Peck?”. How many lawyers, let alone judges, bother to understand these issues?

Both the external lawyers and the judges often appear to the company lawyers to be part of the problem rather than the solution. I suggested recently that the big four consulting firms plus the likes of Huron Legal and FTI Consulting (both present at this event, and at a senior level with James Zinn from Huron and David Bowie from FTI) are likely to erode work traditionally done by law firms in this and in many other areas.  It is implicit in Richard Susskind’s analysis of the future of law firms that lawyers will get cut out of the work because they first got cut out of the discussion or, rather, that they did not bother to take part in it.

It is not just the formal parts of the Nuix Exchange which were meticulously organised, with a packed schedule of dining and leisure activities laid on in addition to the back-to-back formal sessions. Those of you conducting risk-assessments for your next corporate event may care to consider what your fall-back will be when your carefully-planned welcoming dinner at a signature restaurant is thwarted by a fire breaking out in the building opposite even as your guests were walking to the restaurant. Nuix calmly made alternative arrangements.

Unbelievably fortunate, I have walked round Sydney Opera House at dawn, looked over Bondi Beach at dusk, had lunch on a harbour boat-trip and seen Don Giovanni. The latter, of course, includes Leporello’s data collection statistics from his employer’s activities in various  jurisdictions:

In Italia seicento e quaranta;
In Alemagna duecento e trentuna;
Cento in Francia, in Turchia novantuna;
Ma in Ispagna son già mille e tre.

You can find Don Giovanni’s tips for handling reluctant data controllers here.

I am now in Melbourne with my wife, Mary Ann, seeing Geoffrey Lambert and, for the first time in what seems like weeks, catching up with some of my notes.  I am not sure what to make of the fact that when I bumped into Beth Patterson, the Director of Applied Legal Technology at Allens Arthur Robinson, at the airport here, she expressed no surprise at finding me passing through.

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