Three articles come my way at once, connected by the theme that electronic documents raise management issues in small and medium-size cases and not only in the large ones which tend to hog the limelight. One of the articles comes from the UK and the other two from the US; the principles apply everywhere.
Bringing Babel to the lawyers
The UK article is from Charles Holloway at Millnet and is called Nimrod. The chap allegedly responsible for commissioning the Tower of Babel could serve as the introduction to several eDisclosure / eDiscovery parallels. Charles Holloway refers, subliminally at least, to two of them. One is the launch of the new civil procedure rules, where the clear message intended by Lord Justice Jackson has been undermined by a confused delivery which resembles a site instruction at Babel: we have costs management, heavily qualified by ad hoc exemptions yet still promoted as the default - picture a Greek writing instructions in Babylonian for the benefit of a Latin-speaking project manager to pass on to a Hebrew workforce in Gaelic and you can easily see the relevance of Babel to the rule makers.
We don’t need Babylonian, Latin, Hebrew, Gaelic and the rest to confuse the UK eDisclosure landscape, because we have American. Much of the marketing style, as well as the language, comes direct from the US, and it needs more than a dictionary to convert US eDiscovery concepts into terms which matter to the lawyers who are the potential buyers of eDiscovery software and solutions in the UK. I have done my bit over the years to reduce the language of fear and scale which characterises US eDiscovery marketing, full of talk of terabytes, sanctions, legal holds, requests, privilege logs and all those other things which make US discovery so disproportionately expensive. You cannot wholly blame the marketing people, whose language reflects the reality of the problem they are attempting to solve – in the US.
Charles Holloway’s second point is that this language – of vast volumes, big teams, urgency and fear – is Babel to the majority of UK lawyers, even those with moderately large cases. Proud boasts of reducing terabytes of data to reviewable volumes in days, and of saving tens of thousands of Pounds are important – Millnet themselves have just done that with their Relativity case study of which I wrote here – but the majority of UK litigation lawyers do not face problems like that. Their problem is how to manage their everyday caseloads, with enough electronic documents to warrant electronic handling, and new rules to encourage that, but not on a scale recognised in most eDisclosure marketing.
Tips for eDiscovery / eDisclosure on a budget
Meanwhile, US forensic and eDiscovery expert Craig Ball has published an article called Eight Tips to Quash the Cost of E-Discovery which was originally written for a panel called “EDiscovery on a Budget”. The article begins with accounts of two different approaches to a US eDiscovery matter, one anticipating costs of millions of dollars and taking forever, and one which combined lawyer intelligence and planning with the use of some appropriate software to bring the volumes, the timescales and the cost down to a proportionate level. The “eight tips” of the article’s title apply in any jurisdiction.
A US law school course about small and medium cases
Lastly on this theme of smaller cases comes a link to a US law school course which again has relevance in any jurisdiction. Two things caught my eye about it: one was that it is specifically aimed at Discovery for the small and medium case; the other is that there is special provision for law students to attend online for free.
The conventional wisdom is that eDiscovery / eDisclosure has no place in small and medium cases. That only makes sense as a proposition if it is in fact cheaper to manage the electronic documents (and what case, however small, does not involve electronic documents?) by printing and reading them. You only know that if you have investigated alternatives.
It comes as a surprise, perhaps, in the UK, to learn that few US law schools offer education in the practical aspects of managing this most expensive component of litigation. Most young lawyers, in either jurisdiction, first come across discovery / disclosure when they get brought into a law firm team on a live case. This is not the only respect in which UK legal training fails its students – training them, as Richard Susskind says, for a legal world which has gone, for where the the puck is rather than for where it will be (see Susskind’s Tomorrow’s Lawyers for more on this point).
The other thing which caught my eye about this course is the identity of the participants. The steering committee includes a retired and current judge, William Hamilton who has, amongst other titles, that of Adjunct Professor of eDiscovery, Browning Marean of DLA Piper, Tom O’Connor of Gulf Coast Legal Technology Center and George Socha, the co-founder of EDRM.
Just as interesting is the involvement of eDiscovery software providers, including iCONECT, as Toolkit Providers. iCONECT’s Ian Campbell is amongst the presenters, as is Martin Audet from Nuix, John Patzakis of X1 Discovery and John Tredennick of Catalyst. This is an impressive team for any conference and it is good to see these talents assembled for the benefit of those engaged in smaller cases and for students.
Most eDisclosure / eDiscovery suppliers and software scale down as well as up, and can be used economically for cases very much smaller than the headline ones from the marketing materials. That does not mean every case, but lawyers cannot dismiss such solutions without asking what the costs would be for any particular kind of case, and not just because the new case management rules require it. The first example given by Craig Ball – of a grossly disproportionate costs estimate reflecting either ignorance or tactical gamesmanship (let’s charitably assume the former) is an extreme one, but it is replicated every time a lawyer puts numbers against an eDisclosure exercise without knowing what “tools and techniques” (the expression comes from the eDisclosure Practice Direction) are available to reduce the problem.
None of this is easy and it is foolish to suggest that it is. Technology is not a magic wand which makes eDisclosure / eDiscovery exercises disappear, and it costs money to deploy it and to learn how to use it. The money available to fund litigation is sharply reduced, even without court rules which impose restraints on spending. Volumes and risk are going up as spending goes down. There are many cases which it is no longer economic to fight, with justice denied as a result. There are many law firms whose practices are no longer viable, and one cannot always blame poor management, bad business decisions or over-spending.
There remains, however, potential for litigation beyond the big commercial cases which can be run at a cost acceptable to clients and courts. If it is right to suggest, as Charles Holloway does, that eDisclosure / eDiscovery providers could do a better job of explaining how their software and services can be used effectively for small and medium cases, it is also right to say that lawyers could get better at finding out about the tools and techniques which are available.
Craig Ball ends his article with the suggestion that “price is what the seller accepts”. I stop short of suggesting that eDisclosure providers, any more than the lawyers, should take unprofitable work except where some collateral benefit is perceived. My interest is not in driving down hourly rates or per-gigabyte charges for solving a problem – the market will do that for itself – but in thinking more inventively about how to reduce the problem to be solved.
The new UK rules, with their focus on proportionality and active management, open the door to this for those willing to use them. Lawyers need to pick up the phone and talk to providers not just about about what their solutions cost but what they do and what they save. Providers need to make some room, in their literature and their presentations, for more than the very big cases.