Earlier this year, I took part in a discussion panel in Bristol hosted by Integreon. The panel members were Mark Brannigan of Aon, Nicola Woodfall of Travers Smith, Emily Wyllie-Ballard of RPC, Vince Neicho of Integreon, and Clare Chalkley of Integreon. I was the moderator.

I have not written this up hitherto because I knew that Integreon was doing its own summary. That has now been published with the heading When legal meets technology: exploring the future of eDiscovery.

The discussion in Bristol centred around a presentation given by many of the same people to the Judicial College. Their focus on that occasion was a practical consideration of the disclosure pilot, and that was the jumping-off point for a wide consideration of the factors to be considered in any discovery exercise.

The disclosure pilot is a good attempt at dealing with the practical implications of a subject whose underlying implications are changing in every direction. The growing volume of data is only the start; technology brings us new ways of communicating, in new file formats, stored in different places. The intermingling of personal and business data coincides with a greater focus on privacy and data protection. Data crosses borders, raising both practical and jurisdictional issues.

I am quoted in the article as saying that lawyers must “consider all possible evidence sources”. The word “consider” was carefully chosen and was not a recommendation to disclose, or even collect, everything. I went on to emphasise that proportionality and cost dictated that the first level of that consideration was to decide what was worth investigating and subsequently producing. At that point, of course, the rules of disclosure / discovery meet the ever-growing and ever more diverse range of data types and sources, increasingly operating to restrict what is produced.

The rules are your friend, if properly used. Instead of the old obligation to produce everything “relevant”, the duty of both lawyers and judges is to make decisions as to what is worth disclosing. The expression “worth disclosing” is not, of course, a term of art – that is not what is how the rules express it. It is, nevertheless, the true effect of rules whose purpose is to limit disclosure to that which helps the court to reach a decision.

For this purpose, we have new technology. Increasingly, technology must be wielded as early as possible to help determine the outer scope of discovery and of the subsequent discussions between parties (and thence with the court) as to what actually matters. We talked a lot about the technology, and the main message was expressed by Vince Neicho in a quotation included in the Integreon article:

Don’t get wrapped up in technology; it doesn’t matter how it works, just that it does.

Another theme was the need to “concentrate on the content, rather than the process” – focus less on finding fault with the other side’s discovery and more on being constructive and in seeking clarification. “If you’re going to challenging omissions, challenge the ones that matter”, Vince Neicho said. Tactical posturing is not merely frowned on by the rules – is it really the best use of the client’s money?

Integreon’s article is short enough for you to read for itself, and little is served by my paraphrasing all of it. The end of the article suggests that we might run the session elsewhere, and I look forward to playing my part in that.

While we are on the subject of focusing on the things which matter, every English lawyer will want to comment on the little hammer at the top of the article. Do us a favour and read the text instead.

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