I had the pleasure and privilege of giving the opening day’s keynote speech at iCONECT’s Global Summit on Litigation Technology in Florida last week. I brought back at least as much as I delivered in terms of the understanding of eDiscovery which the event was designed to foster. I also enjoyed myself immensely.
The venue was the Hilton at Fort Lauderdale which, for the geographically challenged, lies north up the coast from Miami. There is a set of photographs here. The sea winds in everywhere here, with expensive-looking leisure vessels (“boats” rather understates it) moored alongside the hotel and strong breezes bringing squalls of rain out of a clear sky. I arrived on Saturday evening, finding Nigel Murray of Huron Legal already there, as I usually do on these occasions, almost anywhere in the world.
“An interface designed for the Facebook and LinkedIn generation but which nevertheless conveys businesslike efficiency is just what we need. Xera has all that and more. The expression “to raise the bar” is much overused, and probably belongs with “unique” and “revolutionary” in the marketeer’s verbal dustbin, but I’m willing to use it this once – Xera will raise the bar for user-friendly application interfaces in eDiscovery”
Ian Campbell’s talk took us behind the interface, talking of billion item projects, freedom from Active-X, data migration into and out of Xera, advanced analytics and domain searches; we heard about the ability to develop your own “tiles” to personalise the interface and the workflows, and about relationships with, for example, Wave, Kazeon, Nuix and Opus 2’s Magnum.
Then it was my turn. I rarely do speeches, preferring to moderate or take part in panels, but the opportunity to devote an hour to a subject of my choice, and in such company, was not to be ignored. I chose as my title Innovation and Informed Risk-Taking are an eDiscovery Duty which was, and not by coincidence, the title of an article I wrote after LegalTech. The broad themes were to do with the responsibility, shared by all the players – judges, lawyers, in-house legal, IT and information professionals, suppliers and law schools – to lift our collective heads from the craven fear of sanctions and the illusory search for a perfection which the rules do not require anyway.
Somebody needs to have the courage, I said, to press the delete button, but it needed input from all the players identified above to alter the culture, and not merely the practice, which has lost sight of the Rule 1 objective of “just, speedy, and inexpensive determination” of cases, the equivalent of the overriding objective in England and Wales.
I gave examples from everyday life in the UK of disproportionate reactions to risk. Plaintiff-friendly judges, insurance companies with a liking for high premiums and low payouts, the “Why, Oh Why” drivel in some newspapers, politicians keen to be seen to be doing something – anything – to look active and, above all, whining little runts in Health and Safety offices with clipboards for brains and great skill at job creationism, had between them created a culture which curtailed everyday activities and caused immense compliance expense. Some of this, I said, is necessary, and no one denied the need for some controls. No one, however, intended the expensive pursuit of risk-free perfection which we now have – it has just crept into life and become the norm. The same is true in eDiscovery.
I did a quick survey of the rest of the world’s eDiscovery and, without claiming perfection for the practice in any other jurisdiction, pointed up aspects which gave the lie to the reiterated assertion that “the US is two years ahead of the rest of the world” in eDiscovery matters. The US, I said, had given us much very fine technology, and was the home of more considered thought than could be found anywhere else (this conference was an example) but it was worth looking at how the rest of us managed without the “sophisticated” structure of the practice which had developed under the Federal Rules of Civil Procedure and without the fighting over trifles in every last ditch which, to outside eyes at least, characterised US litigation.
The contrast appeared most clearly, I said, when US lawyers sought to export their own discovery practices into jurisdictions which saw them as over-broad, even before considerations of data protection and privacy were applied to them. The ABA and the Sedona Conference have both made recommendations to minimise the conflict, including limiting the scope of discovery to what was really necessary. Why could the same principles not be applied to purely domestic litigation?
I touched on Judge Peck’s opinion in Da Silva Moore. This, I said, gave active encouragement, and not just mere approval, to the use of technology. Equally, it was not just a technology opinion; it stressed the need for transparency and cooperation, the duties of cost effectiveness and proportionality, the need for proper process and the supremacy of Rule 1.
I referred also to Judge Waxse’s recent paper Cooperation – What Is It and Why Do It? This slides seamlessly from an analysis of the mutual benefits of cooperation, through the demolition of the idea that “zealous advocacy” ruled out cooperation, and into an analysis of the rules which make it quite clear that the benefits are merely collateral to a fixed set of obligations to minimise discovery and to cooperate to that end, quite apart from the principles in Rule 1.
A new set of skills is needed, I said, both within the companies owning the data and amongst those who manage the discovery. I pointed to last year’s New York Times article Expensive lawyers, Replaced by Cheaper Software but said that this overlooked (amongst other things) the need for people with a new set of skills. Not all of those people will be lawyers.
It was always tempting to think, I suggested, that technology had developed as far as it could go; that is what the canal builders thought, as did the railway developers who followed them so quickly, before the sloth, complacency and lack of imagination on the part of railwaymen allowed the motor car to dominate in its turn.
I ended with a picture of galley slaves chained to their oars, illustrating the point that we are all in this together, shackled to a method of working which is labour-intensive but of finite capacity. When your children ask “What did you do in the eDiscovery war?”, what will you say?
I was followed by Browning Marean of DLA Piper US who focused specifically on the US rules of preservation and legal hold. As always, he sweetened the pill of hard fact and dire warnings with humour and a lightness of touch which makes them easy to swallow.
Browning and I also took part in a panel on the second day along with Vivian Tero of IDC and Mikki Tomlinson of eDJ Group. Josh Gilliland, the Bow Tie Lawyer, was the able moderator of a spirited hour on early case assessment.
The next day’s keynote was by Vivian Tero, who gave us an excellent and wide-ranging talk on, amongst other things, litigation and eDiscovery trends, corporate discovery investment priorities and evolving eDiscovery architecture – the cloud, big data, mobility and social media.
eDiscovery, Vivian said, has to become a core business function, yet is not taught anywhere. 48% of the lawyers who had been surveyed had done overseas collections. Even companies with policies for traditional eDiscovery material had been slow to introduce them for social media. These are just tasters from a talk which ranged widely and which, more importantly, was rooted in the analysis of carefully-collected data.
There were other talks covering the iCONECT roadmap and the technical, development and user aspects of Xera. Steve Fleming of Opus 2 gave an interesting talk on the integration of iCONECT with Magnum. This was a technical talk for technical audience, and barely scratched the potential for Magnum to be used as an integrated and collaborative display tool attractive to a purely legal audience.
As if all this was not enough, iCONECT also gave us the best evening’s entertainment I have ever had at an eDiscovery conference. My idea of entertainment on these occasions is quiet conversation and decent food in the company of pleasant people, and my heart sank rather when a drum kit and amplifiers were laid out by the pool. Nor, at first, was I cheered by the sight of the evening’s main performer, Bill “Sauce Boss” Wharton, whose getup suggested “amusement” at the expense of musical ability. Amusing he certainly was, but that was an adjunct, rather than an alternative, to guitar virtuosity, great songs and a fine singing voice. The photographs and the video give you the idea; he gets an unequivocal recommendation from me for anyone looking for conference entertainment.
That, perhaps, was consistent with the rest of this conference – a light-hearted approach and the occasional joke need not derogate from the seriousness of the subject-matter nor from the quality of the delivery. Just as Sauce Boss can deliver good music wrapped in a light-hearted performance, so a well-balanced conference can cover heavyweight topics without excessive seriousness. I enjoyed it, and I got great value from the sessions, and I think that this was true of most of the delegates.
The journey home was less amusing. I sat next to a man – a civil servant, I would guess, or perhaps an accountant – who spent one-third of the journey gabbling into his dictation machine, one-third tutting and snorting at his entertainment screen as if offended by its content, and one-third sniffing. At Heathrow’s Terminal 5, the inadequacy, incompetence, and disdainful idleness of the management of the UK Border Authority meant that foreign visitors were queueing out of the hall for the few booths which were manned; the fault does not lie with the men and women at the booths but with those who manage them. As with so many eDiscovery failures, the fault lies in deficient processes, lack of project management skills and complete mismatch between the objective and the methodology. A small accretion of intelligence and some private sector rigour could transform this gateway to Britain.
I looked longingly at an Oxford bus which left just as I emerged from the terminal. I had another engagement, however, at IQPC’s Corporate Counsel Exchange. This was taking place at the other end of Heathrow, and it had been hard to decline the invitation when I was going to be more or less at its door anyway. My subject was Sharing the Burdens and Benefits between In-House Counsel and External Lawyers, and the format was a roundtable discussion, which gives an opportunity to listen as well as to speak. However good they may be at reacting to their clients’ problems, lawyers are generally poor at pushing themselves forward with pre-emptive advice; for their part, general counsel are not particularly receptive to approaches initiated by lawyers whose fees are painful enough when you have to involve them. Opportunities are lost to discuss strategies wider than merely winning the next case. The connection with my talk in Fort Lauderdale is obvious.