The UK-based Legal Support Network has just published an interesting briefing paper about eDisclosure / eDiscovery, opening with an observation on the difference, or absence of difference, between those two terms, kick-started by Jonathan Maas of Ernst & Young.
For practical purposes, there is no difference. The long-established process of “Discovery” was renamed “Disclosure” in 1999 for reasons which made no sense at the time beyond the optimistic notion, endemic at the time, that you could improve something by changing its name. The alleged benefit, the shift of focus to what you gave to the other side, was meaningless then and has become more so as the emphasis has moved, under pressure from the volumes, to the scope of search. The terminology change also failed to anticipate that this would become a subject which crossed borders both intellectually and practically, leaving England & Wales with a confusingly different term for the same process. There is quite enough to misunderstand without frigging around with the established terminology.
My own approach, for what it is worth, is that if one is referring to the Rules themselves then one should use the terminology of the Rules but that the term “Discovery” is the proper one for the process. In practice, I generally do what I have done in my opening paragraph and use them both.
The opening article is an interview with Jonathan Maas, rightly described as “a bit of a legend” in litigation support. Jonathan was already well-known in the nascent field when I began, and that is going back a bit. You do not need me to paraphrase the article for you, but the main point, to my eye, lies in the sentences “[Lawyers] don’t need to know how to do it, just that it needs to be done.” and “law firms need to know these things can be done, to know the benefits and to be able to stand tall with their decisions…”. You cannot “stand tall” if you do not understand what you are talking about.
Another of Jonathan’s points worth emphasising, in an interview which is full of them, is the growing attention paid by the court to collaboration, and the focus on discovery as the end-use of broader information management.
Lastly, if forced to cherry-pick Jonathan’s points, I would focus on the difficulties of predicting costs. The problem here is not so much the inability to put numbers against stages in advance but the lawyers’ inability to explain what the variables are and to involve the clients in the decision-making – it is, after all, their data, and if they have a lot of it then certain consequences follow.
In an excellent survey of the problems, Joanna Goodman draws on a wide range of sources (including me) with an emphasis on people at law firms who are involved in eDiscovery every day. Not every firm has or can justify having such people on board, even if they existed. Law firms would do well, however, to study what these experts say and then work out what combination of their own resources, outsourced help and, perhaps, someone whom they have encouraged from their own ranks to acquire the skills to perform at least some of the necessary functions – this crossover between technology, project management, court rules and clients objectives is by no means easy, but this combination of internal resources and outsourcing will allow smaller firms to compete with less agile rivals.
The Briefing’s next section includes contributions from four of the more thoughtful providers of specialist e-Discovery software and services. There are contributions from Johannes Scholtes of ZyLAB, Bob Tennant of Recommind, Philip Favro of Symantec (which now owns Clearwell Systems), Frank Coggrave of Guidance Software and Greg Wildisen of Epiq Systems, a well chosen group whose expertise covers the full range of skills and services required here.
Johannes Scholtes of ZyLAB makes the same point as Jonathan Maas about the need for law firms to educate themselves. Again picking one point out of many, I would focus on his suggestion that you can “negotiate better settlements for clients” if you are on top of the information about the case.
Bob Tennant of Recommind emphasises that, amongst its many benefits, predictive coding engages senior lawyers earlier and gives reviewers “better review organisation and guidance, both of which helps speed up the review”.
Symantec‘s Philip Favro emphasises the need for clients to organise their information management and draws attention to the opportunities for law firms to advise them on this. This was true even before Earles v Barclays Bank drew attention to the raised expectations of courts (and it is true also of regulators, as Philip says) as to a litigant’s readiness for litigation, particularly where they are regular litigants.
Frank Coggrave of Guidance Software emphasises the range of sources of discoverable information at the same time as the demands for it (e.g. for the Bribery Act) increase. Knowing where your data is located and having a data retention policy are critical; these, as Frank Coggrave says, are areas where law firms should be advising their clients of what can be done in advance, rather than merely waiting to be hit.
Greg Wildisen of Epiq Systems emphasises that the discovery of electronic information is a project which, though it involves variables peculiar to each case, nevertheless requires a set of processes planned in advance and capable of application to any case. Like the problems, the solutions come in many shapes and sizes, and even the firms who have in-house skills look to external providers for advice on the most appropriate tools and techniques for the job.
This is a good collection of advice from a broad range of sensible and informed people. Any law firm with a litigation practice would do well to read it.