As I reached home after the second day of IQPC’s 10th eDiscovery and Information Governance Summit, cold, soaked through, and knackered after two days in which I had sat down only to eat or moderate panels, an email arrived….
I was just wondering what new issues / topics might have been highlighted at IQPC this year
A perfectly sensible question, of course, but only two short words came to mind at the time: one was “sit” and the other “gin”. It was a long week, with some video filming before the event began and a plane to catch to another event soon after it ended.
If I answer my correspondent’s question first, right at the top of this article, that saves you having to read the rest. My own subset of inputs from IQPC’s big London event includes nothing new and comes down to this:
Lawyers are winning cases and business by demonstrating competence in the use of technology in the management of their own and their clients’ business; the corollary to that is that work is being lost by those who lack that ability.
Technology is just a toolkit. It is servant to objectives, to strategy and to tactics. The required skill is not just knowing how to push the right buttons but understanding how to weave the use of technology into everyday practices.
Advantage lies with the party which is on top of its data (and thence its evidence, its costs and its risk) as early as possible;
Competition exists in many forms – not just rival firms, but big consulting companies with growing ambitions, experts with relevant skills in a range of fields (search, budgets etc), organisations willing to share risk and offer managed services at fixed costs, and increasing hands-on activity by in-house legal departments). Other things don’t necessarily displace lawyers but point to other ways of resolving disputes which involves new ideas, such as mediation and other jurisdictions.
The asset which matters most, and the one which is in shortest supply, is people.
If the event touched on a lot of topics which are dear to my heart, that may have been because I moderated five of its panels. More sensibly, they are the subjects which ought to be of importance to anyone engaged in the management of information for disputes purposes.
Craig Ball’s opening keynote was called Girding for the E-Savvy Opponent. Its theme, as you might surmise from its title, is that the litigating lawyer who is on top of his or her sources of evidence and familiar with the technology which is available to manage it, has both a strategic and tactical advantage over an opponent who is less skilled. Which would you rather be – the one who is on top of the subject or the one who faces an opponent who is better than you?
Craig illustrated the opening of his talk with a number of slides on the theme that “Generals are always ready to fight the last war”. The Maginot Line and a photograph of Hitler strolling around Paris, fetchingly attired in Hugo Boss, illustrated his point. The lawyer who relies on keywords, but does not understand the concept of a stop list, will be confounded when searching for phrase “to be or not to be”.
We also heard on the opening morning from the UBS eDiscovery team from both sides of the Atlantic and from the well-known double act of Ralph Losey and Jason Baron on information governance.
My first subject was technology assisted review. Recommind assembled a group of providers (Simon Price, David Nichols and Adam Higgs) offering three different solutions to “my” eDiscovery problem while Mr Old School offered boxes of paper and a method of prioritisation which involved making piles of files and going through them one at a time; Mr Linear Review intended to put everything into a database and set a large team to work on reviewing it from one end to the other. Wearing my commissioning lawyer hat, I suggested that even Mr Old School’s piles of paper might be the better approach. Neither of them would be able to tell me for weeks how big my discovery exercise was going to be, nor could they say how many people would be needed and for what period to achieve it.
Unsurprisingly, Mr Prioritised Review had a much more impressive answer. His method would rank documents in a presumed order of priority, allowing me to to check both the “presumed relevant” pile and the “less relevant” pile, and to cut off my review at the point when the time and cost became disproportionate to the objective.
Proportionality was the theme, too, of my second panel, sponsored by Iris Data Services and called From inception to CMC: proportionality in finding what really matters. Major Baisden, President of Iris Data Services, represented providers of eDiscovery services; Robert Lewis of Barclays was there both as a major client and as one who has set up his own in-house team for managing at least the early stages of eDiscovery; Vince Neicho of Allen & Overy and Andreea Mohan of Taylor Wessing represented litigation support teams within law firms.
Andreea Mohan, on an earlier panel, gave us what was for me the most important story of the event; her firm had won business because it was able to satisfy a client that it had the relevant technical expertise and lawyer skills to manage the eDisclosure component of the client’s case. We heard also of a client who had wanted to know how a firm would handle an off-shore review. Craig Ball had already emphasised that competence wins cases; here was evidence that it also wins clients.
The second day was chaired by Jason Baron, and I had two panels back to back before the coffee break.
One was the judicial panel at which I was joined by US Chief Magistrate Judge Elizabeth Laporte from the Northern District of California and Judge David Harvey from the New Zealand District Court in Auckland.
We ranged over several topics. Judge Harvey told us of the comparative eDiscovery rules of New Zealand, Australia, Singapore and Hong Kong; Judge Laporte talked about the conflict between US eDiscovery demands and the privacy and data protection restrictions of other jurisdictions.
We returned to that same subject of lawyer competence with which Craig Ball had opened. Judge Laporte told us about the results of a survey of judges conducted in the US by Exterro whose results suggested that even the lawyers practising in Federal courts had a long way to go. Judge Harvey ended with an interesting case study on the Internet of Things, showing that this neglected area will easily (and very soon) produce a major new discovery component in a civil litigation claim.
Next I moderated a panel on costs, with a panel comprising former Senior Costs Judge Peter Hurst (now a mediator at 39 Essex Street) and Andy Ellis of Practico. They had both been at an event the previous evening at which Lord Justice Jackson and Lord Dyson had surveyed the costs management initiatives. You will find the speech itself here and I will not add to an already overlong report by summarising it as my panel did for the audience – I will do that in a separate post. I drew two conclusions for the audience at the end of this panel for the audience – one was that cost budgeting is not a game for amateurs; you won’t need Andy Ellis on your side for every case, but you certainly do for some and (to echo Craig Ball’s point again) you would rather have him on your side than against you. You might alternatively, I suggested, turn to Peter Hurst for his mediation expertise.
Finally, I moderated a panel sponsored by NightOwl Discovery and called The production of industry standards and discovery protocols. Simon Collins of NightOwl in Dublin told us about the development of the ISO eDiscovery standards, whilst Clive Freedman of 3 Verulam Buildings and Marie-Claire O’Hara of Bevan Britton talked about the TCC eDiscovery Protocol and the benefits seen by both the court and the lawyers of using it (and not just in the TCC).
We ended with an endorsement for LiST, the Litigation Support Technology Group which is now being revived – I wrote about that here.
My sons William and Charlie were in attendance making videos in a corner of the ballroom. They did a dozen or so in a day which will take us a while to edit.
I like this event, partly because of its always packed programme, partly because I get interesting panels to moderate, and partly because there are always plenty of interesting people to chat to (I accept that my idea of “ interesting” may not accord with yours). I have no feel for the actual numbers in attendance, but this remains the biggest event in the UK calendar and is valuable for the number and quality of those present. Most of those I spoke to, including sponsors, felt that it had been valuable. There are always those who would like a formula different from the platform-and-podium convention, but none of them seem to be able to offer any alternative format. If you have some positive ideas, the organisers would be pleased to hear from you.
There are some more photographs of the event below.