August may seem a strange time to review the year, but it is quite a good standpoint for me before the eDiscovery events from February to May recede into a jumble of airports and slide sets, and as I pause for breath before the next round.
It may seem slightly egocentric to pick myself as a glass through which to look at the year and at the subjects which interest the clients, lawyers, judges and providers who make up my audience. I do so because I am to some extent a mirror for others, notably those who are kind enough to sponsor what I do. I speak, write, moderate panels and make videos with them on the subjects which matter to them, and they in turn reflect what their clients want.
When I began, a decade or so ago, my subject was the rules of eDisclosure and case management in England and Wales. That remains important, not least because of its influence on what happens in other jurisdictions. In addition, eDisclosure / eDiscovery skills and technology have spread out into a wider range of topics and across a wider range of jurisdictions. To what extent can one detect themes from the panels I am asked to do?
To save you reading the rest of this article and those which follow it, the chief issues which have arisen at conferences (in no particular order), are data protection and privacy, predictive coding and other forms of TAR, cyber security, and the role of courts in managing eDiscovery / eDisclosure disputes. Other recurring subjects, coming up in my video interviews rather than at events, are managed services and dashboards which give clients an overview of the matters in hand.
Although it is currently fashionable to suggest that information governance has faded away as a subject of apparent importance, this reflects the perceived difficulty of selling products and services specifically for IG. The reality is that the governance of information underlies all these subjects.
February to April
I have already written about February and Legaltech and the three panels which I did there and the one panel at the ILTA / ALM event in Hong Kong. The Pyrrho predictive coding judgment was delivered on 16 February and, at about the same time, a date in 2018 was set for the implementation of the General Data Protection Regulation. Between them these two topics have taken up most of my time since then.
I have written about Recommind’s Pyrrho-themed seminar in St Paul’s in mid-March and about the Nuix Insider Conference in London which were the start of the long conference trail on these subjects. After that, event followed event, each with its own preparation and travel requirements and I gave up trying to report on them as they happened.
In mid April, QuisLex asked me to take part in an event organised by Law Absolute on Pyrrho and predictive coding. The panel was noteworthy for me because it was where I met Ed Spencer of Taylor Wessing and Dan Wyatt of RPC, the solicitors on opposite sides in Pyrrho. By an accident of room configuration, Vince Neicho of Allen & Overy and I, survivors from the pre-electronic age, sat at one side of the room and young thrusters Ed Spencer and Dan Wyatt sat at the other, together comprising the panel. Although there was nothing inter-generational about our discussion, Vince and I felt that, at last, we had found some eloquent representatives of the younger generation – the generation most likely to be affected by the incursion of technology into civil litigation – who will take up the battle when we are gone.
A few days later, Robert Childress brought the Masters Conference to London. I took part in a panel on predictive analytics led by Simon Price of Recommind, alongside Mark Simmons of Ashurst and Meribeth Banaschik from Noerr’s Dusseldorf office. Meribeth Banaschik may well be the only lawyer qualified in both the US and in England and Wales who works in a mainland Europe law firm and understands the application of technology to the practice of law. I bumped into her again in Frankfurt later in the year, and we are doing a cross-border panel together at Relativity Fest, where having feet in the US, the UK and Germany will give her an unfair advantage over the rest of us.
That perhaps epitomises one of the main themes – after years of insularity in eDiscovery, where each jurisdiction ignores or affects to despise the customs and habits of others, we are at last beginning to learn from each other, discarding the things we don’t like but at least observing what happens elsewhere. Those in the US have a new respect for UK case management, and a new understanding of proportionality as a result of the Pyrrho case, and Ireland attracts similar respect thanks to Irish Bank Resolution v Quinn. The US is gradually tempering some of its eDiscovery excesses and is beginning to accept constraints on its power to demand data from abroad. As we will see later in this series of articles, even mainland Europe is slowly waking up to developments elsewhere.
April had no events in it which was just as well because I needed the time to prepare for May.
To be continued….