This is the second part of my account of a trip to the US in October. My son William and I went to Nashville and Chicago where I took part in events or meetings with the three companies named in my title – Huron Legal, kCura and Cicayda. The first part of this three-part post is here. This one covers Nashville and what I said about US and UK eDiscovery / eDisclosure at Cicayda’s un-conference.

So William and I flew to Chicago, stayed a night there and went on down to Nashville. We arrived on a wet Sunday; the entire city seemed to be watching some game or other in a sodden stadium; public museums were closed thanks to the shutdown and we could find nowhere to buy anything resembling the European idea of an espresso. (All was forgiven on that front, incidentally, when we eventually found a cafe with the finest espresso I have ever come across in the US; if that sounds a bit like “the warmest place in Greenland” or “the funniest man in Germany” it is meant to, but it tasted good).

Things brightened up in the evening, when Cicayda entertained all the speakers at a first-rate dinner. I shared a table with the energetic and ideas-filled Eric Hunter, with Jason Cox (Cicada’s CTO and someone I have known since his days as a co-founder of Case Logistics), with Charles and Jane Christian from Legal IT Insider, and with William. Our theme, as I have recorded elsewhere, and unsurprisingly given the company, was how to reconcile lawyers to a future which they could not avoid despite their best endeavours.

You would not expect an un-conference to take place in a conventional conference centre. “Just walk across the Pedestrian Bridge”, they said, taking for granted that one would know what they meant. This was a rather more interesting journey to a conference than going down into the basement in the elevator, as one usually does. Mist swirled around the Pedestrian Bridge (our venue was the building at the far end of the bridge):

Below it was a railway station like something from a model village.

The pigeons sat expectantly above a sign reading Feed Co, like lawyers gathering round a prospective client…

….while one of them posed in front of the AT&T building as if to illustrate a hundred years of mobile communication.

Inside the conference room (or un-conference room) it was all as conventional as could be, with rows of desks set out in front of a table. That was about where conventionality began and ended. You might expect an eDiscovery software company to focus on – well, eDiscovery, on rules and technology; there was a fair amount of that, not least from me on rules, but much of it was about developing clear messages (“describe your services in 17 simple words”), about predicting case outcomes from data about past cases, and about how lawyers and service providers can best serve the interests of entrepreurial clients. This was sophisticated stuff, pointers to a world in which clients were not impersonal abstract entities who had problems and who paid the bills for solving them, but people you work with towards the success of both parties.

This was one of those events where I found out what my subject was by reading the agenda – this may sound odd, but it happens quite a lot and I rather like its lucky dip nature. The subject I had been given was US eDiscovery changes from a UK perspective, which was as good a subject as I could ask for.

I said that I had first gone to the US in 2007 in response to the common reaction from UK lawyers that eDiscovery was “something Americans did, and look what an expensive mess they make of it”. This reaction derived in part from the rather peculiar idea that eDiscovery was something which one “does” from choice, when in fact it is merely the name given to the management of electronic documents – choice does not come into it.

I said that I had found US lawyers to be defensive and fearful about eDiscovery; its messages were exclusively of threats – “sanctions”, “legal hold”, “preservation”, “Zubulake” – all designed, or so it seemed to me, to encourage an excess whose beneficiaries were lawyers and providers rather than clients and justice. This artificially expensive process was accompanied by the curious assertion that “the US is two years ahead of the rest of the world”. I had come from a jurisdiction where proportionality meant something, where the emphasis was on judicial discretion rather than on bright lines and arbitrary punishment, and where the focus was on identifying what really mattered.

I was not saying, I stressed, that the lawyers and judges of England and Wales were any better than their US counterparts in practice, but that was mainly because no one paid much attention to the provisions within the rules which required (not merely permitted) lawyers to slim down the scope of disclosure as early as possible. We had a narrow definition of a disclosable document, and had abandoned the wide test of relevance; the definition of a “reasonable search” and the case law principle that one did not have to look under every stone both operate, or should operate, to trim down the volumes at the very stage where US lawyers are bullying each other to produce more and more. I talked quickly through the UK developments since then, through the provisions of the eDisclosure Practice Direction 31B and on to Jackson, with its emphasis on proportionality, its budgeting requirements and the emphasis on compliance expressed in the limited provisions for relief from sanctions.

Whisper it quietly, I said, but the US was moving slowly in the same direction. The key element in Judge Peck’s Da Silva Moore opinion was the focus on cooperation, on the fact that perfection was not required and on competence. The proposed new rules, if passed, would eliminate what the UK calls “train of enquiry” discovery as a default, provide a uniform standard for sanctionable conduct, and clarify the preservation obligations in Rule 37(e). There were real opportunities here, I said, to turn the tide and to align the requirements of the courts with the needs of the clients. Or the US could carry on as before, erecting artificial hurdles to magnify a self-imposed perception of risk, and driving up the cost by requirements which had nothing to do with the real issues and even less to do with justice. By all means set traps for the dishonest and the incompetent, both in the rules and in the tests you apply to opponents’ discovery, but do focus on what really matters and on what the clients’ objectives are.

There were two respects, I said, in which the US was ahead of the UK: one was the technology which had developed in response to the demands of F.R.C.P.; the other was the substantial and articulate body of people, both judges and others, who had constructive contributions to make to the discussions; in addition to Judge Peck’s Da Silva Moore Opinion, I referred to Judge Waxse’s excellent paper on cooperation, as I do in any jurisdiction in which I speak.

I would have liked to stay for the whole event but we had a plane to catch. This meant, amongst other things, that I missed talks from Charles Christian of Legal IT Insider, Casey Flaherty of Kia Motors America and Babs Deacon of eDJ Group, all of which won high praise from others who wrote about the event (or un-event). There is a summary of Day 1 here and of Day 2 here.

I made a video recording of Casey Flaherty talking about the next steps in his plan to develop an apples-to-apples approach to eDiscovery quotations and estimates. I also interviewed Cicayda’s Roe Frazer who described what his ambitions were in setting up RELEvent.

Then it was off to the airport and back to Chicago.

In the third and last part of this article, we go on to Chicago, to a predictive coding panel at kCura’s Relativity Fest, to lunch at the Purple Pig and walks around that fine city, and to see Huron Legal.

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