Spring Offensive in the eDisclosure War

It feels suddenly as if a new phase is opening up in the war to tackle the wasted costs of e-disclosure. If the Rule Committee’s recent failure to grasp the nettle seemed a rebuff, there is a new Spring Offensive coming. A busy week moved us forward on several fronts.

I would have been content for the week with the signing of a new sponsor (Nuix) and the publication of Senior Master Whitaker’s judgment in Goodale V MoJ which, as I said in my article on it Goodale v MoJ – a template judgment for active management of eDisclosure, is as important as a model for e-Disclosure case management as for the fact that our ESI questionnaire is annexed to it and thus made public. There has been more than that, however.

I began the week by recording an interview with the well-known US e-Discovery consultant Tom O’Connor and with Browning Marean of DLA Piper US. We covered, amongst other things Judge Scheindlin’s Opinion in Pension Committee, the implications of Judge Brown’s judgment in Earles v Barclays, the impact (or lack of it, in my view) of the French Bruno P case (I am keen to quell the idea that emails not marked “Privée” are fair game for FRCP data collections for that reason alone), and the use of Twitter as an informational medium. Not a bad range for a short discussion.

Then I had a meeting with Professor Dominic Regan to plan an approach which will bring together his 18 years as the best-known speaker on the law and practice of litigation with my specific interest in e-Disclosure. That creates the possibility of presenting on one platform Dominic’s highly-regarded thoughts on the law (and specifically on the implications of the Jackson Report) with my sessions at which eDisclosure providers show what technology can do in the context of the Rules. The coming months will see a resumption of these rules-plus-technology talks, which I did in Birmingham and Bristol last year supported by several suppliers of litigation software and services. I was waiting for the Jackson Report and the proposed new Practice Direction and Questionnaire before doing more of these, and to have the Goodale judgment is a bonus, making up for the fact that the Practice Direction has been consigned to sub-committee limbo.

The proposed eDisclosure Practice Direction and Questionnaire should have been heading for the rule book by now. It remains important to get them into the rules, not least because the imminent (as he thought) implementation of something “substantially” in the form of our drafts was the reason why Lord Justice Jackson made no recommendations as to procedure (Paragraph 2.5 on page 366 of the Final Report). The purposes behind these documents, however, are more important to lawyers and their clients than the Rule Committee’s procedural formalities and, as I have argued in these pages and will argue at our presentations, there is much which can be done within the existing rules. We can leave the Rule Committee to catch up in its own time.

There has been increasing interest in in-house and other talks about e-Disclosure, with more going in the diary last week. I also fielded new requests about sponsorship of the e-Disclosure Information Project, as well as keeping up with the existing ones – a lunch with Martin Bonney and Deborah Blaxell of Epiq Systems was a pleasant way to work, but was work nevertheless, part of a campaign to make sure that that we all carry the right messages to lawyers who might otherwise conclude from the Rule Committee’s attitude that we can continue to fight electronic battles with paper disclosure and still win clients and conduct cost-effective litigation. We cannot.

I published 9000 words or so last week on topics as varied as e-Discovery costs shifting, EU privacy considerations and the Hague Convention, e-Discovery and judicial involvement in Australia, and spoliation in English law, as well as other things. There were more than 2,000 page views on my blog last week – the highest it has gone for a single week. That implies an increasing degree of interest in this subject.

I was invited to deliver the keynote speech at the Chilli IQ Information Management and e-Discovery Summit on 9 and 10 June in Sydney. HHJ Simon Brown QC is due to speak in Sydney this week, but the way things are developing at the moment, there could be a whole new agenda by June. This simultaneous focus on London and the English regions, the US, the EU and Australia helps ensure that we don’t miss developments – positive or negative – which have lessons elsewhere.

Apart from private events, things coming up include a session on 16 March with the Scottish Society for Computers & Law with Nigel Murray of Trilantic and Ian Manning of Raposa Consulting, an interview with Dominic Regan for a forthcoming Raconteur supplement in The Times on legal efficiency, an evening with 7Safe and its guests on 15 April, the recording of a further set of podcasts with Lisa Burton of Legal Inc and an update to the podcast I recorded with CPDCast last year – we had better do these quickly before something else new develops.

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