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.