I mentioned a while back that London legal services provider Hobs Legal Docs had taken on Patrick Rowan from Ernst & Young as sales director. The press release is here but, as I often do with press releases, I have waited for the opportunity to speak to Patrick Rowan before writing about the appointment.
Regulatory work in general, and Competition work in particular, requires a degree of urgent attention to the documents in a way which makes most litigation look leisurely. Whether the trigger is a dawn raid or an enquiring letter, a company and its lawyers have very little time to establish what the position is and to make informed decisions about it. Since the Akzo Nobel decision on in-house privilege, the imperative is to involve outside lawyers immediately.
Companies like Hobs are well used to collecting data in a hurry, processing it and getting it quickly under the lawyers’ eyes – it is often a revelation to the lawyers that they can start looking at key documents almost immediately, without waiting for full processing to take place. The technology is the same – see Hobs partner list for the companies whose technology might be used. There are obvious differences – a company facing a regulatory investigation does not have the same options to settle or to choose the issues on which to focus. The lawyers from whom the instructions come are also, it seems, a slightly different breed to commercial litigators, probably as a result of the permanent need to react quickly and decisively.
Forensic collections of data are the norm, usually targeted by custodian rather than full imaging, although the latter may be seen as necessary. The lawyers are more comfortable that this means of collection will secure them and their clients against attack from the regulator.
Regulatory intervention often has a long tail, since dealing with the regulator is sometimes only the beginning – litigation often follows, for example, from customers who believe that the outcome entitles them to some personal remedy.
The rise of regulatory work does not mean that civil litigation diminishes in either volume or importance, nor is that work all coming from London or via law firms. Hobs’ Manchester office is busy with local work, direct for end-clients as well as via external lawyers. I have a slide in my UK eDisclosure set which shows the gradual shift as lawyers begin to lose their role as managers of the disclosure process because the clients are taking on at least part of that role themselves. Hobs Legal Docs’ MD, Terry Harrison, added anecdotal flesh to the bare bones of my theoretical slide as he talked of direct instructions which bypass the lawyers or, at least, diminish their role in the document management aspects of a case. This is not yet a lost cause, but law firms have to ask what value they can bring to this expensive part of the litigation process, where the clients understand it, and know where to go to get the work done, but the lawyers do not.