You can find eDiscovery parallels everywhere if you look hard enough

What is the proper etiquette when someone else devotes half a blog post to writing about you? if they are simply polite, then a brief acknowledgment is all that is is required. It is easy if they are rude or argumentative – I can give as good as I get if that is the game. What, however, if you find yourself part of a pot-pourri which includes buttered parsnips and Norway’s butter shortage, his late Majesty King Richard III and his relatives, those fine English historians Sellar and Yeatman, topless barbers and a brief German lesson, with a couple of eDiscovery references thrown in? If I am occasionally discursive, a pre-Christmas blog post by my old friend Charles Holloway at Millnet makes one think of Chesterton’s poem The Rolling English Road and “the night we went to Birmingham by way of Beachy head”.

When I say “old friend”, a double ambiguity is intended – Charles is one of the few people in eDiscovery / eDisclosure who is older than I am. I am not here seeking to suggest that there is a link between age and the apparently random wandering from subject to subject in his post Faire Words Butter Noe Parsnips – Charles is a former litigation partner at a well-known firm of solicitors, and brings much needed legal gravitas (leavened, I should add, with much wit) to a market which risks missing its target through over-emphasis on the alleged magic of technology. The UK eDisclosure industry (and it is no different in the US and elsewhere) very much needs lawyers in it to act as a buffer between those who face the problems caused by technology and those offering the solutions. The Millnet blog, Smart eDiscovery, is a regular and much-needed part of that translating mechanism. A willingness to step outside a bare recital of technology and rules is very much part of the blog’s attraction.

A clubbable man, Charles does himself an injustice by claiming “an air of grumpiness”; he also threatens to trespass on a niche in that regard which Charles Christian of the Orange Rag and I have worked hard to claim as our own – the space for cantankerous cynicism about legal IT is already occupied. Besides, the parsnips post is expressly a pre-holiday, silly season post, not intended to carry the deep thoughts about eDisclosure which are the norm in a Millnet blog post.

Although I baulk at trying to connect them, it falls to me to explain some of the diverse threads in Charles’s piece; indeed, I have been challenged to do so by its author. There is not a lot of eDiscovery in what follows but, then, we have all had enough of that for one year, have we not? Besides, one can dig eDiscovery parallels out of almost anything if one tries hard enough.

Richard III

There is a clear anticipation of a certain type of litigation lawyer in Shakespeare’s portrait of Richard III. I used to know by heart the speech from which Charles Holloway quotes in his first paragraph, because it was one of the plays which I studied at O level, and “studied” is what one did in those days. It is Richard of Gloucester’s opening speech, in which he mocks the “weak piping time of peace” which has followed the end of the Wars of the Roses and the restoration of King Edward IV (one hesitates, incidentally, to correct the learned Holloway, but the reference to “this son of York” is not about Richard but made by him of King Edward, whose family logo, the sun, provides a play on words in the opening sentence).

Richard preferred war, where his mis-shapen figure, resulting from his premature birth (“deformed, unfinished, sent before my time into this breathing world scarce half made up”) was irrelevant. A fashionable man, he sneers, now “capers nimbly in a lady’s chamber to the lascivious pleasing of a lute”, whilst Richard has nothing better to do than watch his own shadow “and descant on my own deformity” because he is “not shaped for sportive tricks” and, we infer, has no luck with the ladies.

We all know people like this, of course – litigators brought up in the good old days of truly contentious litigation before the 1999 Woolf reforms emasculated the process with obligations of co-operation, and before mamby-pamby ideas like pre-action protocols and witness statements deprived us of the fun of ambushing the enemy. Shakespeare anticipated both the obligation to discuss sources of data and the duty to provide estimates of costs; what else did he mean when he referred to “stern alarums changed to merry meetings, our dreadful marches to delightful measures” – though whether the pre-CMC discussions can ever be described as “merry” or the measuring of costs referred to as “delightful” is unlikely.

Education has declined somewhat since Charles and I were at school, with Shakespeare’s plays reduced to three or four easily-understood concepts and, as we have recently discovered, examination boards conniving with schools about the compulsory questions in order to prop up the illusion that results improve year on year. The foul betrayals which Richard hints at in the rest of his speech have nothing on the disgraceful conduct of those who betray successive generations of schoolchildren in the way that the educational establishment – and particularly the examination boards – has done.

I digress, though that hardly matters in this context. Spurred on by his deformity, Richard plots and murders his way first to the position of Protector during the short reign of his young nephew, Edward V (very short – Edward and his younger brother disappeared almost immediately, and are now known only as the unfortunate Princes in the Tower) and then as King.

Paul Delaroche: The Princes in the Tower

If the products of our debased education system looked at Richard III at all, it would be presented as a story of the challenges facing disabled people, with the extract from Richard’s speech given above being followed by questions like:

  • You may know someone who is sadly disabled like Richard was. Do they have problems with their sex lives like he did? (10 marks)
  • What state benefits and help would Richard be entitled to now? (5 marks)
  • What legal rights would Richard have if his employer did not promote him to king, which he was clearly entitled to? (5 marks)
  • Richard obviously killed all those people because of his sad upbringing and deprived home life. Do you know anyone like that? (5 marks)
  • At the end of the play, Richard calls “A horse, a horse, my kingdom for a horse”. Describe how you would use eBay to exchange things like that (5 marks)

Note: Do not on any account attempt to write on both sides of the paper at once

The things which Richard of Gloucester did to his relatives and other enemies are as nothing compared to what I would do, given the opportunity and a spare half hour, to a representative sample of past education ministers, the trendy educational theorists who infest the Department of Education, the directors of examination boards, and, not least, the useless little creatures of the regulators Ofsted and OfQual. Rot the lot, I say, for what they have done to the future of our children – and therefore of our country.

There, that’s got my message of peace and goodwill out of the way.

1066 And All That

I know about Sellar and Yeatman and their 1930 book 1066 and All That, not least because they read history at Oriel College, Oxford, as I did; the instruction to candidates given above comes from there. The death of narrative- and fact-based history probably makes their parody completely inaccessible to modern generations, who have to do without the pegs of battles and rulers on which to hang the rest.

There is an eDiscovery parallel here if you look hard enough: how many young litigation lawyers of today have ever actually taken a case to trial? Many of them are fighting past wars, as well as using the weapons of the past; the study of history, like reading case reports, should help us avoid the mistakes, as well as benefit from the successes, of the past. The UK Ministry of Defence is said to be trying to work out what type of wars we will be fighting in the future, in order to decide what type of forces we need and what weapons they should have. Its predecessors sent men in scarlet to the dust of the Boer War, cavalry to the trenches of Flanders and biplanes against Hitler’s Luftwaffe, so the omens are not good. Litigators seem equally to miss the point that it is settlements they need to “win”, not trials.

I sometimes think of writing a parody of modern eDiscovery / eDisclosure practice in the style of 1066 And All That – indeed, that is more or less what I do with the annual judicial play (there is something consistent here about Oriel’s alumni and their attitudes to serious subjects). Who, though, needs to parody the world from which some of the eDiscovery stories come, starting with the Ofsted (see above) paper-shufflers who overlooked documents in a senior pen-pusher’s My Documents, in a folder clearly marked “Haringey Inquiry”?

Schadenfreude

Charles defines this as “laughing at the discomfiture of others”. It is a feeling he gets, he says, when he says of me that “[Mr Dale] is yet again stuck on a train or has been irritated by the shortcomings of public servants”. There are in fact multiple reasons, didactic, stylistic and to do with perception, why I report things like this, of which making people laugh with or at me is one of the least. Explaining them would undermine the purpose, so I will leave Charles to enjoy his schadenfreude.

Norwich and the topless barbers

If, as Charles Holloway is, you are Under Sheriff of Norfolk and married to the High Sheriff, then it is only right that you should leap to the defence of Norwich. He takes issue with my description of it as “staid” in an article which observed on the coincidence that the city was simultaneously to be the venue of a topless barbers shop and an experiment with HP tablets by the Crown Prosecution Service. Whatever its attractions, Norwich has not hitherto been at the forefront of social or legal innovation. The barber scheme has since been abandoned; I hope a better fate attends the CPS tablet trial.

Parsnips and the Norway butter shortage

How are we doing so far in extracting eDiscovery-related subjects from Charles Holloway’s blog post? There is more in there than meets the eye, is there not?  We come now to the references to the Norwegian butter shortage and to the ancient English expression “Faire words butter noe parsnips” which Charles uses as the title to his blog post. This is more straightforward than you might think, and is clearly designed to illustrate how one might use different technology in order to identify, and then to accept or reject, a class of documents for discovery purposes. The point of clustering software, for example, is to identify subjects within a document collection which you might otherwise fail to identify – who could guess that there would be multiple references to butter within a single document in a collection otherwise devoted to eDiscovery? You might use that to supplement your keywords list. That in turn might inform your use of predictive coding (and we know from their recent case study that Millnet is an advocate of predictive coding) from which you may conclude that dairy products are central to the case – or not, as the case may be.

By chance, my eye fell this morning on a photograph of Marlon Brando and Maria Schneider, making me thankful that Charles did not give a wider-ranging set of references to butter (your Christmas Quiz, incidentally, is to explain why a key word search might link a review of the relevant Brando film with Charles’s article whilst predictive coding would rightly reject it, but please don’t tell me when you have got there).

The expression “Faire words butter noe parsnips” means that polite expressions and empty promises are no substitute for delivering the goods. It is, as every American lawyer knows, what English lawyers say to each other where the US equivalent is “Don’t give me any any of that crap, schmuck”. I have an article coming up on the differences between US English and English. Like this one, and as Charles Holloway says of his own article, these are brief respites from what seems set to be a busy 2012 of unremitting eDiscovery.

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