Recent posts by Hobs Legal Docs remind us that the problems raised by e-Disclosure are resolved by adherence to principles like proportionality as well as by the selection of appropriate technology.
You don’t need scientific proof (though it exists, apparently) for the proposition that your brain does one of two things when subjected to too many choices: after an attempt to assimilate and evaluate all the options, it either abandons analysis and plumps for something by instinct or gives up the selection process entirely and does without whatever it was which was being considered.
Something similar happens with words like “proportionality” which have multiple potential meanings and no certain definition, and subjects like “cross-border eDiscovery” which sounds like something which other people do, and only occasionally. They quickly become unnoticeable, like ambient music in a shop or the chatter of radio announcers – you have a vague idea that they are there but lose focus on content and meaning.
EDiscovery / eDisclosure has all these elements; multiple providers offer similar-looking solutions with terminology picked from a narrow vocabulary which includes polysyllabic words like “proportionality” and expressions like “cross-border eDiscovery” whose meaning gets lost with every repetition. All these things do in fact have meaning and potentially have daily implications for lawyers. In practice, proportionality is usually invoked only retrospectively when the lawyers are called upon to justify an alleged under-disclosure, and however important it appears at US eDiscovery conferences, UK lawyers give little thought to the implications of collecting documents and data from other jurisdictions.
Quite often, when any of these things arise – the need to pick a software solution, the developments of proportionality arguments or the need to collect data across jurisdictional boundaries – rationality goes out of the window and the lawyers turn to the biggest names they have heard of or the one who last made contact with them in lieu of a proper selection process. That’s daft, obviously.
I group these things together because all of them – system selection, proportionality and cross-border discovery – have turned up recently from UK litigation and information management provider Hobs Legal Docs. Companies like Hobs do not make their own software but have partnerships with a range of software providers. Such a partnership connotes not merely the ability to give you a quotation, but access to the skills and experience needed for a project, whether directly from themselves or from the software provider. Hobs has such connections with a range of providers, including kCura, Westlaw Caselogistix, Guidance Software and Equivio. A recent press release concerns their partnership with Clearwell and, specifically, the ability to offer Symantec’s Clearwell eDiscovery Platform version 7.1.1.
The press release, with its description of the functionality in the Clearwell litigation family and quotations from Chris Hurst of Symantec and Patrick Rowan of Hobs is self-explanatory. No amount of explanation, however, stands substitute for getting on to a provider like Hobs and asking to know more – not just to organise a demonstration but to talk about how different permutations of software and services can be used to address the issues raised by the undisputed fact that electronic documents exist and must be dealt with. You do not want just a techie talk, but a business discussion which brings in the rules and the business considerations as well as the immediate practical problems.
Another recent press release from Hobs called Could proportionality be solution to eDiscovery cross-border issues points up the pragmatic advice which one hopes for in these circumstances. Terry Harrison, MD of Hobs Legal Docs, refers to recent articles by Phil Favro of Symantec and by me, and talks about a recent eDiscovery / eDisclosure exercise in which Hobs had to deal with the collection and review of documents in multiple foreign jurisdictions. The temptation is to assume that this is a specialist subject which only ever turns up for law firms with specific expertise. If that is your experience in these days of multinational commerce, then you are probably missing a trick. Terry Harrison reminds us that, in addition to specific expertise, cross-border litigation raises basic concepts of proportionality – in the rush and apparent complexity of such litigation, it is easy to overlook simple questions like “ how much of this is actually worth doing?”
His reference to initial narrow disclosure with reservation of the right to do more in due course echoes Master Whitaker’s judgment in Goodale v the Ministry of Justice which reminded us that phased disclosure is sanctioned by the rules, both explicitly and as part of a proportionate response to the cost implications of electronic disclosure.
Litigation is only the half of it – probably much less than half, in fact, where cross-border collections of documents are required. Most of this arises from regulatory activity and in relation to internal investigations. I wrote about Hobs’ involvement in this kind of work in my post Hobs Legal Docs adds Competition work to its eDisclosure skill-set.