eDisclosure Information Project

There are parallels between the reaction to terror attacks and other threats and the handling of e-disclosure for litigation. Collections of masses of data become not merely a substitute for information but places to lose it, and the real objective is missed. The value of thinking gets lost in the mechanics of data collection.

I am not averse, as you will have noticed, to drawing parallels between those who govern us and are responsible for our security and welfare, and many of those who give disclosure of documents. An often obsessive regard for rule and regulation is unmatched by any great application of thought, and data is collected without considerations of expense or inconvenience or with any regard for how it might best be used as information. The collection of the data can become an alternative to the real objective, and the availability of technology often becomes the driver – since we can now collect so much more data, the collection itself becomes the objective, obscuring the actual reason why the data was required in the first place. Quite quickly, the data becomes not a source of information but a substitute for it or, even worse, the place where it is buried.

In the context of e-disclosure for litigation, I am as keen as anyone (and perhaps keener than most) on both the rules and the use of technology. I take care, however, to emphasise that both are subordinate to the objective of achieving justice. The Civil Procedure Rules begin with the overriding objective, whose function is expressed in its name; it overrides everything else. The fact that we have technology capable of handling vast volumes of data does not mean that we must feed it everything we can find – that does not just cost money (and unnecessary expense is a bar to justice) but actually obscures our purpose by concealing the things which matter. My mantra here is that the most important technology lies between our ears, and that both the obsessive imposition of the rules and an excessive reliance on technology causes disengagement of the brain and the missing of the point. Continue reading →

These posts sometimes acquire a life of their own in the writing especially where, as with this one, they are done in stages across a rather long day. What began as an account of my last day in Singapore turns into the observation that EDD quotations are like a cold beer on a hot day – if you really need it right now then you may have to pay more for it.

Up at 4.00am this morning [Friday], for no more obvious reason than that my internal clock was unsure what time zone it was in. It had probably caught up with Washington, but was actually now in Singapore – but not for much longer. I stayed awake throughout the second day of the conference (just as well really, since I was chairing it – how embarrassing would that be?) and went out for blameless suppers with Browning Marean, followed by early nights, respectably ignoring the fact that Singapore has a larger number of very beautiful girls than any city I have been in. It is probably that which has caught up with me (early nights, I mean, not being respectable). If you go to bed four hours earlier than usual then you wake up four hours earlier. Nothing to do with time zones. Continue reading →

A director who destroyed documents in anticipation of a government investigation may not be subject to any penalty for the bare act of destruction divorced from any actual proceedings against him or his company. If that is indeed the position, there will be calls to change it. Bad cases make bad law.

I will not try and make sense for you of the story of how the Phoenix consortium acquired carmaker MG Rover for £10 in 2000, departing five years later as millionaires when the company crashed into administration. You will get the picture from the Sunday Times headline How the Phoenix gang plundered MG Rover and from the paragraph in the article which reads:

While it stops short of accusing the Phoenix directors of fraud, it paints a picture of a group of men happy to pay themselves tens of millions of pounds, much of it stashed in an offshore trust, while the carmaker ran up big losses and ultimately ran out of cash, throwing 6,000 people out of work. They ignored corporate governance guidelines, switched valuable assets out of the car company into their own names, lied to MPs about the nature of their dealings, and bawled out the few advisers who dared to question the legality — or morality — of their actions. Continue reading →

The mechanics of electronic disclosure are not an inherently legal function like Will writing or conveyancing. Instead of assuming that the work will always be theirs, lawyers must ask themselves why the clients should not divert it somewhere else.

There is something comforting about the certainty that you will always be needed. Doctors can always be reasonably sure of a steady flow of patients. Farmers and others engaged in food production know that people will always need to eat. It is not yet foreseeable that we will do without some form of energy piped into our homes. Fashions in clothes may change but we will always need something to wear.

Many apparent certainties, however, do not in fact last for ever. An article in last week’s paper predicts the end of fixed line telephony. A petrol station or roadside inn finds that its busy road is bypassed. I live between a canal, the latest thing in transportation when it opened in 1790, and the railway line opened in 1846 which killed canal trade overnight. Sometimes the need for a skill set drops away – a Western doctor specialising in, say, cholera, rickets and consumption came to need new areas of specialisation.

The need to handle torrents of documents has historically generated floods of work for lawyers,  subsidising other areas of the firm’s practice such as the delivery of high value advice from their expensive offices as big cases brought big disclosure exercises and the opportunity to turn their assistants’ hours into large bills. What, however, if document handling flows away to others? Continue reading →