Digital Reef Panel at the Masters Conference – Early Case Assessment: is it working?

I was a member of a Masters Conference panel brought together by Digital Reef to discuss the question whether early case assessment is working as a way of saving time and money in litigation, as well as for improving its outcomes.

The moderator was Shawnna Childress of Navigant and of Women in EDiscovery. The other panellists were Steve Akers, CTO of Digital Reef, Bill Belt of LeClair Ryan, Browning Marean of DLA Piper US and Michelle Treadwell Briggs of Goodwin Procter.

“Early Case Assessment”, capital letters and all, is one of those expressions which lost all meaning when commandeered by technology marketing departments. It pandered to the idea that there existed a push-button technology solution, and the side-effects included two which were less than helpful: one was that we could defer thinking about cases until they hit us; the other was to make lawyers feel that they were bit-players in a technology solution.

The first of these means that we are always firefighting. Although companies are beginning to realise that there is no realistic alternative to a proper document retention policy and the technology and processes to back it, the reality in many companies is that this involves resources which are not readily available (perhaps because no-one has ever bothered to add up what the fire-fighting is costing – see this article by Katey Wood of ESG which suggests that a simple computation of external legal and ediscovery spend might provoke a different approach to in-house resourcing). Even where there is no in-house capability, companies ought at least to know what they will do on the occurrence of any reasonably foreseeable triggering event – a fire drill to be invoked to aid fire-fighting.

Epiq Systems Solutions Showcase in London on 8 November

Epiq Systems is holding an E-Disclosure /  E-Discovery Solutions Showcase at the Barbican in London at 4.30pm on 8 November. Its title is The Power of Options, which seems appropriate for an event which includes several leading software solutions as well as the consultancy and document review services which Epiq offers in conjunction with the technology. There will also be a seminar led by costs expert Professor Dominic Regan, adding a timely and relevant educational element to the solutions on show.

Epiq was described as a “niche player” in the Gartner Magic Quadrant for E-Discovery Software of May 2011. The word “niche” somehow implies narrow specialisation; I am not sure that it was the right word to use of Epiq in May, but it certainly seems inappropriate now that the full effect of its April 2011 acquisition of Encore Discovery Solutions becomes clear. The London Showcase will demonstrate just how broad its range is.

Compare and Contrast: US and UK attitudes to Preservation Sanctions

“My five year old can tell by page three of an Opinion that it is going to end in sanctions”.

The best panel sessions leave you with a one-liner which summarises at least one of the viewpoints. The DoJ’s Allison Stanton gave us this one at the Masters Conference preservation panel as a memorable shorthand for the idea that parties who are punished by the court for discovery defaults generally deserve what they get. Some combination of unconscionable conduct and a more-than-technical breach of the rules makes it obvious what is coming as you start to read the court’s decision.

Apparently different views do not necessarily contradict this idea. To say, as many do, that the fear of being sanctioned is driving ever-bigger discovery exercises is not answered by the assertion that you can always identify a bad case from the judge’s tone on page three. You can tell that it rained by the fact that your visitors are soaking wet, but that does not necessarily help them decide what to wear tomorrow.

The formal title of the panel at the Masters conference was Preservation: Will this be the next change to the Federal Rules? It was moderated by William Butterfield of Hausfeld and comprised, as well as Allison Stanton, Martin Audet of Nuix, Courtney Barton of AOL, John Rosenthal of Winston and Strawn and Paul Weiner of Littler Mendelson.

Assessing risk rather than trying to eliminate it

The mediaeval heritage of Dunster in Somerset includes – or did until recently – cobbled streets and paths. These are now being ripped up because the highways officers and health and safety people from the local council are worried about the risk of injury to people who take insufficient care whilst walking on them. They are being replaced with paving slabs (the cobbles are being replaced, that is – replacing a council officer with a paving slab would often improve a council’s average IQ considerably).

Some people did indeed fall over on the cobbles which were in poor condition and needed attention. They obviously caused difficulty to wheelchair users. Against that, people fall over council paving every day, the cost of ripping up the cobbles was estimated at £100,000, and it is probable that the wheelchair users, like all the other visitors, came because the place was a rare example of an almost perfectly-preserved mediaeval town. An analysis was made of risk and cost, and the safe and easy option was taken despite the destruction of the very thing which visitors came to see.

Contradictory contrasts emerge between the US and the UK in respect of the general attitude to public risk and in respect of eDiscovery risk. The US appears to us to be very relaxed about everyday risk whilst being obsessed to the point of catatonia with eDiscovery risk; the US in turn thinks that the UK approach to eDiscovery – to spoliation, to preservation and legal hold, and to the completeness of discovery – aims at a laughably low standard compared with the stringent requirements of US discovery.

None of these conditions arrived fully-formed, or developed as a matter of policy. The UK obsession with eradicating risk came from nowhere and evolved rapidly without a master plan; few people involved in US eDiscovery see much sense in the absurdly expensive regime which has grown up. It is hard, however, to reverse evolutionary trends like this even where the majority see them as nonsense.

Let us look first at UK attitudes to general public risk, starting with road safety. Putting it as mildly as possible, highways officers are not drawn from the higher intellectual strata. I drove through a county recently whose roads were littered with the highways department’s injunctions to drivers to “Think!”, something as incongruous as having a pig urge you to improve your table manners or hearing Tony Blair say “Let’s be honest” – the mismatch between the command and the known characteristics of the person giving it is obvious.

I see you have done no blog updates….

As comments go “I checked this morning and saw that you have done no blog updates” ranks very much higher than “Oh, do you keep a blog?”. The observation came, however, from someone who was also attending the Nuix Exchange in Sydney and sharing its very packed programme, and if even he could not see why I had no time to write blog posts, then perhaps I ought to add a little to the explanation given in my last post.

I arrived in Sydney at dawn on Saturday but without having reported on the last three conferences which I attended – the Masters Conference in Washington, E-Discovery Ireland 2011 in Dublin and the IQPC Forum E-Discovery in Berlin. Not every conference, still less every conference session, is worth writing about, and leaving some distance before writing about them helps one to focus on the points of lasting significance. It is equally the case, however, that I owe new readers some elements of the back story and of the continuing themes, even at risk of repetition for those who have been here for a long time.

The Masters Conference was interesting because separate sessions were devoted to each of the current big e-discovery themes. Dublin was important because it was Ireland’s first e-discovery conference. The Berlin event illustrated (yet again) the gulf which exists between common law (and particularly US) discovery and EU (and especially German) attitudes to handling data.

The Nuix Exchange was different from all these, as an assembly of people deliberately chosen to try and move the discussion beyond the present and into a future which is coming whether we like it or not. I am not going to steal my own thunder, as it were, by giving now a potted version of the fuller reports to come, but I can give a taste of what was covered here.

E-Discovery from Washington to Dublin

I have been known to spend longer writing about a conference than I spent in attending it, but there is little chance of that at the moment when the gaps between conferences are shorter than the events themselves once the travel is factored in. I envy those who can write well whilst on the move, but none of my fundamental requirements for writing are catered for on aeroplanes; no investment in mobile office technology will remedy the vileness of the coffee, the prohibition on smoking and the distressing (I choose the word carefully) number of people who think that the Social Contract entitles them to bring their caterwauling brats into Business Class.

The Masters Conference for Legal Professionals, held in Washington each October, always provides a high content-to-time ratio. It is double-tracked and, unusually for me, I found something I wanted to attend in every time-slot. Reducing the resulting notes to manageable proportions is something of a challenge.

The sessions which I attended were about the current big themes – possible changes to the rules relating to preservation, whether early case assessment is working (a panel in which I took part), an update from the Bench, technology-assisted review, international privacy and discovery, practical discovery of social media and (always my favourite panel at this conference) the Women Thought Leader panel.  The session which aroused most comment was one which I missed, on certification, but fortunately Ron Friedmann made a comprehensive note of it.

These big-theme labels disguise a great quantity of high-value detail. Looking at my notes, at the departure time of my next flight, and at the other stuff which accumulates when one’s back is turned, I am forced to the conclusion that my reports of these sessions will have to wait. The importance of the subject-matter is not going to fade over however long it takes me to get back to this.

Barristers, Berlin and Bribery Act – an eDiscovery Compendium Part 2

As my last article explained, I am setting off on a sort of eDiscovery world tour thanks to a coincidence of invitations, each of which was too interesting to turn down. I keep a running list of things which I would like to write about, fed as much by Twitter as by things I am directly involved in. This post records, with the minimum of comment and in no particular order (and with few hyperlinks ‘cos I ain’t got time), the ones which come to hand as I pack my bags. There is a small reward, in the form of a bonus link, for those who make it to the end.

A talk to barristers at 3 Paper Buildings

I put this first, partly because that is where it belongs in the timeline, and partly because it points up two important things –  that the UK is no less important to me because I spend a lot of time abroad, and that the erosion of solicitors’ traditional work is perhaps closer to home than they imagine.

The introduction to 3 Paper Buildings came through Andrew Haslam, who had worked with a member of chambers on a case involving electronic documents. As we have done before, Andrew and I split the subject-matter to reflect our respective primary interests. I talked about the rules and about how astute and pre-emptive use of both judicial discretion and technology could cut down disclosure volumes. Technology is shifting the emphasis from rows of people reading documents to intelligent application of thought. Increasingly, in big cases, it is barristers who find themselves running case management conferences and engaging with the court. There is a real opportunity to use the CMC as a means of focusing on the client’s objective and on the court’s objective, and on how the combination of technology plus brain could achieve them within the rules. Andrew Haslam, in a carefully constructed presentation, took them through the classes of technology which exist, stressing that the “right” technology meant that which was right for this case. You do not necessarily need the really clever stuff, but you need to know that it exists and how it could be used. At the least, you need relationships with a couple of providers to whom you could turn.

Surreal, you say. Barristers don’t want to do discovery! Well, this lot got the point at once, not just for litigation, but in connection with regulatory and similar work in which they are engaged. We got some good discussions going, and positive feedback after over two hours of presentation. Anyway, it is no more surreal than the snow which blanketed Middle Temple Gardens and blew past the windows on a warm September afternoon – a Christmas commercial, apparently.