Innovation and informed risk-taking are an eDiscovery duty

A speaker at a Nuix dinner prompts the thought that eDiscovery innovation lies in simply doing what the rules and codes of professional conduct require anyway. By chance, Ralph Losey has written on that subject this week. Risk is a challenge not a bar, and the lawyers’ duty to clients and the court lies in a cool and informed assessment of risk by people who know what they are doing and are prepared to stand by their judgements. Much the same applies to clients embarking on defensible deletion.

One of the few things which stuck in my head when I was an articled clerk (trainee solicitor as they are now more prosaically called) was a stern injunction from a senior solicitor to the effect that  “there are no marks for originality in the law”. It was probably wise advice in a profession which had changed little since my father was an articled clerk and which, in many ways, has changed little since. I cannot recall what I had suggested to deserve this reproof – outsourcing document production to teams of monks recently made redundant by the dissolution of the monasteries perhaps –  but it was easy then, as it is now, for a young incomer to mock the time-honoured ways of doing things.  They soon kicked it out of us.

It is worth repeating a paragraph from my first report on LegalTech 2012, because much of what was in it derives from the two events which are the subject of this post –  a dinner organised by Nuix and a panel which I moderated for them at the conference. The paragraph read:

Other subjects came my way: risk, and the sense that some lawyers, judges and companies are beginning to re-evaluate defensible deletion, their fear of sanctions, and the benefits of new technology, as the expense (the other half of the risk-benefit equation) continues to mount; innovation (in the true sense, not the lazy label “innovative” used as  a grand way of saying “new”);  consolidation amongst providers (though no one guessed how soon we would see the next acquisition); the marginalisation of law firms who ignore the way the wind is blowing; recruitment and training both of the young and of senior people transferring from other industries.

Frank MossThe guest speaker at the Nuix insight dinner was Frank Moss, former director of the MIT Media Lab, “a fantastic hotbed of no-holds-barred creativity, where scientists and students invent and experiment without any fear of failure”. Frank Moss disclaimed any deep knowledge of information governance or electronic discovery, but it quickly became clear that his ideas had application to any business – or, indeed, to any activity where received ideas edge out new ones. The well-known law firm principle “this is how we have always done things here” has no place at MIT Media Lab.

I am not going to attempt a summary of Frank Moss’s talk, referring you instead to his book The Sorcerers and Their Apprentices. I focus instead on the words quoted above – “invent and experiment without any fear of failure”, linking them to electronic discovery and to the reluctance of lawyers, judges and clients to consider non-conventional ways of tackling the issues raised by eDiscovery (I will stick to the generic term “eDiscovery” though the points made apply equally to its UK variant). My conclusion is that the most unconventional thing we can do is to know (which should be easy) and understand (always harder) the rules and duties already imposed on those who appear before the court.

I am not, it has to be said, much given to “visionary” approaches to business change. I know it when I see it – Twitter, Amazon, Google and others come to mind – and I can be impressed by it, but I would rather settle for shifting rocks out of the way than trying to move mountains, particularly when those mountains include the triple alliance referred to above – lawyers, judges and clients – each of whom blames the others for a state of affairs in which companies keep vast amounts of information which they do not need because their lawyers tell them that judges expect that and will punish them for deleting material for reasons which have nothing to do with the issues in the case. The fact that this assertion is founded on multiple fallacies has not prevented its almost universal acceptance.

Nuix Panel Chris DaleThe stock answers to this and problems like it lies in two words, “educate” and “innovate”. Labelling them as “stock answers” is not to denigrate either of them –  they both turned up, for example, in the panel which I moderated for Nuix on the following day as key components in the battle to control eDiscovery costs. On education, we have a battle enough conveying relatively simple things like what the rules say and the deficiencies of keyword searching and manual review, long before we get to deeper concepts.  As to innovation, that (as I said in my earlier article) is used as a grand way of saying “new”. We need the sophisticated technology and the understanding which helps us to decide why we should use this technology rather than that technology in this case; innovation, however, requires more than simply picking the right tools.

The speaker introduction for Frank Moss included this:

Now, “innovation” has become such a buzzword these days that it’s easy to forget what it really means. Too often, we associate it with simple business strategy. We imagine that we can stay ahead in a market of ideas just by calling in a consultant and applying a cookie cutter model of success.

But innovation means coming up with something new. It means creativity and a willingness to take risks. Only genuinely fresh ideas will let you stay ahead in today’s market–and contribute something meaningful to today’s world.

As with “visionary” approaches to business, I set my sights rather lower than contributing “something meaningful to the world”, though higher than merely explaining “predictive coding” and “native format” to reluctant audiences and telling them that they ought to understand the technology solutions. What lies between? What target lies south of an ambition to change the world but well north of merely reiterating relatively simple concepts of business, technology and law?

David Cowen of the Cowen Group and Stephen Stewart of Nuix followed Frank Moss’s talk by leading a discussion whose theme was the BHAG – the Big Hairy Audacious Goal, defined in Wikipedia as a “strategic business statement which is created to focus an organisation on a single medium- to long-term organisation-wide goal which is audacious, likely to be externally questionable, but not internally regarded as impossible”.

Audacious, externally questionable but not impossible.  In discovery terms, those labels would apply to a company which deliberately and consciously set about a policy of defensible deletion.  To many, particularly in the US, “defensible deletion” is an oxymoron, two contradictory terms in one expression.  As well as the fear of sanctions – of being punished by the court or by a regulator for destroying documents which ought to have been kept – companies fear the apparent enormity of the task, where deletion is easy but making defensible decisions about deletion puts someone’s neck on the line.

Craig Ball and Stephen StewartLet us short-cut the sanctions argument by asking if anyone knows of a court decision which punished a party for an honest albeit, as it turned out, mistaken deletion undertaken in good faith and not concealed.  No, I do not know of one either.  As Craig Ball tells us often, the risk of sanctions is rather less than the risk of being struck by lightning. As to the enormity of the task, just ask yourself if it is going to get easier over time. I thought not. What would be innovative here is not the latest technology (though that is obviously an essential element) but the involvement of somebody at a senior level in a company whose job it is to make decisions like this and who has the courage to order deletion. That is information governance or, rather, it is a policy component of an overall strategy of information governance which assesses and manages the benefits, as well as the risks, of keeping or not keeping data.

Stephen Stewart and David CowenThis is one half of the problem and was the subject of the Nuix panel and the webinar which preceded it. I moderated it, and Craig Ball, David Cowen and Stephen Stewart compressed much practical advice into a very short space. The webinar is still available for download and I do not propose to repeat its contents here.

The problem with (and for) lawyers

That is because time and space (yours as well as mine) is limited and because the clients’ information governance is only one half of the problem. The other (if you leave the judges on one side for now) is the unwillingness of the lawyers to take their share of the “audacious, externally questionable but not impossible” task of reducing discovery to its essentials.

Here again, I am spared having to compose paragraphs on the subject because, as has happened to me before, Ralph Losey has trodden the same ground as me in the same week.  I was halfway through writing this article when a tweet alerted me to Ralph’s Sunday post Impactful, Fast, Bold, Open, Values: Guidance of the “Hacker Way”.  Where I have referred to Twitter, Amazon and Google, Ralph picks Facebook as his model for a bold and disruptive approach to the management of businesses, with the question (amongst many others) “do you dare to be bold, or just following timid conventions of old?”

The e-discovery problem, Ralph says, comprises “the high costs of eDiscovery and the low skills of practitioners”, with risk management as a problem which is secondary to the skills problem.  I will leave on one side for now the high costs element, not because Ralph is wrong in his conclusion (lower costs leads to higher take-up and greater profits) but because it takes the eye off my theme, which is the boldness of lawyers. I will ignore also the specific points about the mechanics of managing eDiscovery and go straight to the law firm business rationale.

There are two parts to this in Ralph’s long article. One concerns the building of an eDiscovery team on which Ralph says:

The attorneys who specialize in e-discovery should dedicate their whole practice to e-discovery, and e-discovery alone. Be bold and go all the way. Unless you are full time…. you really will not have the time and experience to master this complex subject. Would you want your heart surgeon to be a part-timer who also does podiatry? Would you want your anti-trust lawyer to also be a family law practitioner? Law, like medicine, is complex and e-discovery is one of the most complex subjects in the law today. Law firms had better move quickly to hire or facilitate full time practitioners. It does not work to just have a few lawyers in a firm that dabble part time in this new area of the law. Mistakes will inevitably follow as the dangerous little-bit-of-knowledge syndrome sets in.

Halfway, band-aid measures won’t cut it in e-discovery. You have got to go either all-in or all-out. The days of a law firm setting up a marketing type e-discovery department by sending out a few of its attorneys to CLEs, and then posturing them as experts, are long gone. It takes bold all-out efforts.

This was the subject of a Virtual LegalTech webinar which I moderated last year with Bill Belt and Daryl Shetterly of LeClairRyan, a firm which really does have an eDiscovery practice as opposed to a few lawyers who, in Ralph Losey’s words, “dabble part-time in this new area of law”.  It is a subject to come back to. There are two reasons, incidentally, why “law firms had better move quickly” to find or train the right people: one is the risk of screwing up a case tomorrow – you may not get sanctioned for honest mistakes, but there is plenty else to get wrong; the other, much discussed in our Nuix webinar, is that there are not many people out there with the skills, and those that exist face alternative careers in big corporations and with providers. Grab them when you find them.

The other requirements for eDiscovery lawyers who can change things, for their clients case-by-case and for the future of litigation, are described by Ralph in these terms:

Openness builds trust. That is why transparency is now a key component to the new paradigm of discovery cooperation. The way to walk your talk in cooperation is by disclosure. How did you go about preservation? How did you go about finding the documents requested? Use the tools of sampling. Make aggressive disclosures so that you can support your proportionality arguments.

….

Old school, hide-the-ball, “take it or leave it” approaches no longer work in e-discovery. When are the old-timey, non-specialist trial lawyers going to get it? When are they going to move over and just let the full-time experts do e-discovery without interference? …. Above all, when are clients finally going to catch on and insist upon an open, expert approach?

I don’t know about the first of these questions. I am reasonably sure that the clients are beginning to question the approach taken by many “old-timey, non-specialist” lawyers.

Conclusion

Let us go back to Frank Moss and the idea that “innovation means coming up with something new. It means creativity and a willingness to take risks. Only genuinely fresh ideas will let you stay ahead in today’s market”.

The paradox in merging these ideas with apparently radical notions of defensible deletion and Ralph Losey’s talk of transparent openness is that, however “genuinely fresh” these ideas may seem, they are in fact consistent with the rules, both the Federal Rules of Civil Procedure and their UK equivalent, the Civil Procedure Rules, and with the professional duties expected from lawyers as a matter of course (Ralph talks about these as well). Specifically, they are consistent with the “just, speedy and inexpensive” obligation in  FRCP Rule 1  and with the “overriding objective” in the CPR.

The “willingness to take risks” does not imply reckless disregard of the rules and the professional duties, but a realistic analysis of what is expected of a party and its lawyers on any sensible interpretation of their responsibilities.  Risk is a challenge not a bar, and the duty to clients and the court lies in a cool and informed assessment of risk by people who know what they are doing and are prepared to stand by their judgements.

The pictures show, from the top: Frank Moss, his book, Chris Dale, Craig Ball and Stephen Stewart, Stephen Stewart and David Cowen. Except for the book, they all come from an excellent video which Nuix made at LegalTech on which I will write separately.

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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, Nuix. Bookmark the permalink.

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