451 Group reports on IQPC in New York

I was not at IQPC’s E-discovery conference in New York last week (see IQPC New York – minimizing risks, costs and challenges). Fortunately the 451 Group’s Katey Wood was there and her report is here.

Two of the points which caught Katey Wood’s eye are of particular interest. One is the session in which Deborah Baron of Autonomy interviewed Karla Wehbe of Bechtel. My article had made the point that client case studies are only interesting if they recount triumph over difficulties. This one seems to have done just that, with sceptical external lawyers now apparently onside and (a much overlooked benefit of in-house control) a proportion of reviewed documents now reusable. My spies tell me that this session was well received – not surprising, perhaps, given the article’s conclusion about “the shifting of roles between e-discovery vendors, service providers, general counsel and law firms as technology moves in-house”.

The other point of interest springs from Katey Wood’s account of the session about collection of international ESI, whose speakers included the well-regarded Denise Backhouse of Morgan Lewis. The sentence about the EU’s fundamental human right to privacy being “literally a foreign concept to those of us accustomed to living under the Patriot Act” is a good way of illustrating how much there is to do to convey to US lawyers that language is not the only thing which is foreign once you cross the Atlantic. Privacy laws and data protection need more than a check-list, as the article says. It would be a good start, however, if the subject did at least appear on the check-lists of those who need to collect data from Europe.

I have yet to see a report about the large judges’ panel at this conference. I will pass it on when I find out what was covered.

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Legal Inc publishes 5th podcast and Earles article

Litigation support provider Legal Inc has now published the fifth in the series of podcasts which I recorded with Lisa Burton. This one covers the software and systems available in the market. The series can be found here.

Legal Inc has also published a briefing paper which I wrote called Earles: Focusing the mind on edisclosure obligations about the implications of Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile). The message is in the last few words – before asserting that finding and handling electronic documents is too expensive, the lawyers need to find out what the costs will be.

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The Baby P case may be the disclosure story of the year

It begins to look as if the Baby P case will beat even Earles v Barclays Bank in terms of its long-term influence on disclosure, not least for the likely focus on individual failings. Is this cock-up or conspiracy? Why were documents being photocopied anyway? How about a forensic examination of Ofsted’s computers, even at this late stage?

There are so many discovery cases in the US that there is usually a “Top 10″ list, identifying those which were the most important. In the UK, only one or two cases will reach prominence in any year. Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile)  was a relatively straightforward commercial case in which the defendant bank failed to produce documents relevant to the central issue. The disclosure point centred around an unsupported contention that it was disproportionate to search for the documents in question. The judge punished them in costs but expressly ruled out ill intent as a motive.

The Baby P case adds several dimensions – a political element, late disclosure of a significant quantity of documents, a formal report apparently rewritten to improve a case, an implausible explanation for the deficiencies, and now the suggestion that the threat of litigation was met with a memo urging the destruction of certain documents. The combination of political interference, apparent bad faith and inherent incompetence makes for a story with the full force of the best (that is, the worst) of the US ones. Almost everyone involved, apart from the lawyers, is inherently dislikeable individually and as a class, but that must not distract from the messages about justice, not least because justice was the first victim here from the moment the original story broke.