There is a long-running quiz in the Sunday Times called Where Was I? Geographical, historical and literary information is given and two questions are asked, one of which is usually “Where was I?”. Let’s try the same with the conference which has just closed in Dublin (and yes, I know the answer is in my headline).
One speaker opens his session by sharing a video clip of a horse (the speaker is a co-owner) winning the Irish Grand National. The speaker who preceded him, a judge of the Supreme Court, turns out to have been a steward at the race. Where was I?
The answer, of course, is Ireland, where there has always been a close connection between the bar and the turf. The co-owner was Tom Gilsenan, who is co-owner also of document management company Informa. The horse was Lion Na Bearnai, or ‘Fill in the Gaps’ who, at 33-1, was not necessarily expected to win the race. Mr Justice Frank Clarke was one of the stewards.
If eDiscovery were a race between jurisdictions, then Ireland would not necessarily start as the bookies’ favourite. Coming from behind, however, is no indicator of final position, as you will know if you watched Frankel stroll out of the starting gate at Ascot last week. If Ireland’s civil litigation system is to move to the front rank then, on the strength of his recent outings, Mr Justice Frank Clark will be its steward.
Having, as it were, flogged that metaphor to death, I turn to the conference itself. E-Discovery Ireland was established last year, thanks to hard work by Owen O’Connor and Karen Reilly of Dublin-based digital investigations company Cernam. Owen says that the idea dates back to my first meeting with him, at Guidance Software’s forensic and eDiscovery conference CEIC in Orlando four or five years ago. Whilst I am pleased to help promote eDiscovery thinking in any jurisdiction, I claim no credit for the organisation of this event, but am very pleased to support it. Ireland has seen some major litigation recently, not least thanks to Bernard Madoff. It is the European home of some of the world’s most hi-tech companies – Microsoft, Google, Dell and Twitter are amongst those with a big presence here, in addition to significant home-grown businesses. It has some major law firms and a busy bar. It has not been quick to adopt a corresponding approach to electronic discovery, with rules and (more importantly) a culture which stand in the way. A few are beginning to realise that this attitude stands in the way also of any ambition to be a dispute resolution centre of choice.
To put that another way, much dispute resolution is portable. Parties can often choose where they will settle their disputes, just as they can often decide where to base themselves for tax purposes (something which has served Ireland well in the past); indeed, they can often decide whether to litigate at all, with obvious implications for those whose businesses depend on litigation taking place. The newly-established Irish Commercial Court has won praise for its turnaround times – the interval between issue and final determination. Discovery costs (it was said at the conference) often represent more than half of the total expense. It seems worth tackling them as a distinct topic.
I heard Mr Justice Frank Clarke speak here last year, and consequentially asked Legal IQ to invite him to join my judicial panel in Washington in September. The dominant theme at that panel was active judicial management of cases – “judicial activism” someone called it here in Dublin – with rigourous control of timescales and costs and a beady eye on competence. Each of the jurisdictions represented in Washington – Ireland, England and Wales, New South Wales and the US – has a different approach. None claims to have the answers, still less that their practice matches the theory of the rules, but each can learn from the rest. We hear rather less now that “the US is two years ahead of the rest of the eDiscovery world”, as it gradually dawns on Uncle Sam that this is one area where being bigger and much more expensive is not a benefit. The US eDiscovery model resembles those vast gas-guzzling cars with fins and chrome teeth at a time when the rest of the world is moving towards smaller, leaner, fuel-efficient vehicles.
There is a good chance that Ireland can develop a set of rules and procedures which will jump over the pains which the rest of us are going through. In Washington, Mr Justice Clarke heard of the recent and pending rules in England and Wales which focus on the early exchange of information between parties and the court, the duties expressly laid on the judge to make management decisions consistent with the overriding objective, and the coming attention to early budgets. He heard also from a New South Wales judge, Justice Sackar, of Practice Note SC Eq 11 which excludes all disclosure not abolutely necessary for the fair resolution of the issues. He has his own ideas as well and his speech at eDiscovery Ireland showed willingness to synthesise all these sources – fiddling round the edges will not suffice here.
I will write separately about the conference sessions at eDiscovery Ireland. First, though, some general observations based on what I picked up during the day.
eDiscovery is not a “method” of giving discovery. It could perhaps be so described at that interim stage when there was a choice between paper and scanned images of paper, but eDiscovery now means the electronic handling of electronic documents and data from beginning to end of the process. There is no extra intermediate stage involving scanning and manual coding; instead, documents are ingested into an electronic system which relies on their own contents to provide primary indexing and which can be searched almost immediately without manual input. This shift is doubtless one of the reasons that Informa changed its name from Digiscan.
There is a wide range of search tools which can be used, from simple keywords through to the sophistication of predictive coding. They serve different purposes, and vary in cost and in output. It must surely be the duty of any lawyer to know what tools exist and what the implications are of using them.
The quest for perfection is a fool’s errand. Whatever the accepted standard in Ireland, no traditional method of search and review gives perfection, nor does it give any way of measuring quality against any objective standard. To describe electronic methods of search as a “black box” implies that you think that teams of humans can not only do it better but can do it faster, cheaper and more accurately. You are kidding yourself on all three counts. The failure of duty, however, lies not in the choice of any one tool but in the failure to investigate other tools.
There is no point in condemning those who prefer to read paper. The primary function of the search and analysis tools is to limit the volumes to be reviewed, and if you choose to print the final subset, go ahead, provided that the per-page printing cost formed part of your decision-making. Technology, for example, will group together all the e-mails which make up a single thread and present you with the “inclusive” e-mail which contains them all; this not only eliminates all the component e-mails from your print-and-read task, but allows consistent decision-making to be made about all of them, by the same person at the same time. That one function alone can substantially reduce the volume to be printed and read – is it cost-effective, or even ethical, to ignore the savings and efficiency which this brings?
There is a perceived conflict between, on the one hand, a duty of zealous advocacy and the tactical play so beloved of litigators and, on the other hand, the benefits of cooperation. One can sensibly separate discussion about the mechanics of discovery from the arguments about issues. Any rule changes should consider expressly imposing a duty of cooperation; in addition, the proponent of aggressive tactics (sometimes the client, sometimes the lawyer) might pause to consider what marginal costs are being incurred thereby and whether they are worth incurring.
Ultimately, in a costs shifting jurisdiction, it is for the court to control the contingent liabilities being racked up on each side at a stage when neither party knows who will pay them at the end.
This article’s title, and my opening metaphor, implies that one jurisdiction can “win” over others in some kind of race. All I mean to imply, of course, is that early adopters learn painful and expensive lessons from which others can benefit. The US notion that it is “two years ahead” of the rest of the world in the management of eDiscovery has produced an unbelievably expensive regime in which any sort of justice is lost in procedural wranglings and in the elevation of form over purpose. England and Wales has picked its way slowly through reform, making mistakes and losing opportunities since the bold aspirations of the Woolf reforms in 1999, and perhaps only now, with the April 2013 reforms, reaching a point where the rules may be fit for the purposes of the clients whose objectives the court exists to serve. Australia, Singapore and, most recently, New Zealand, have developed rules and practices which, whilst distinctive of their own cultures, have borrowed or rejected developments in other jurisdictions.
I have given you two horse races as examples and close with a third. The field for the 1967 English Grand National included a horse called Foinavon, with odds of 100-1 to win. Its owner and trainer did not bother to attend the race, and its performance over the first 22 fences seemed to justify the bookies’ stance. At the 23rd fence, all the leading horses fell, unseated their riders or refused, allowing Foinavon to pick its way through the shambles and win.
I introduce it as a parallel not to imply any inter-jurisdictional race, nor because Ireland has any lesser prospect of success than anywhere else, but because of the opportunity which Ireland has to avoid the mistakes which others have made. It can pick its way through what has happened to other jurisdictions in the same way as Foinavon picked his way through the shambles at the 23rd fence and devise a set of rules and procedures which are fit for the purpose of a jurisdiction which has no shortage of high-end litigation nor of lawyers to manage it.
With that said by way of introduction, I will turn in a separate article to a summary of what was actually said at eDiscovery Ireland 2012.