A case in the Alabama Admiralty Court reminds us that if you don’t know what you are talking about, it is a good idea to get help from someone who does. UK solicitors engage known barristers for this all the time; why not do the same with eDiscovery / eDisclosure providers? Why not, indeed, find a barrister who knows about eDisclosure?
Despite the Alabama opening context, the scene shifts to the UK, partly to emphasise that ignorance knows no boundaries, and partly to allow me to bring in barristers as a source of external skills. Syria, the Bismark and Tom Lehrer provide some backing material in an article about using skills and project partners to remedy imbalances of power and knowledge.
Ralph Losey’s article Poor Plaintiff’s Counsel, Can’t Even Find a CAR, Much Less Drive One tells of an Alabama law firm which entered into an eDiscovery agreement with opponents on terms, and using terms, which neither of them understood. It is hard to tell if Ralph was merely expressing sympathy by his reference to “Poor Plaintiff’s Counsel” or whether some ambiguity lurks in his choice of words. As he tells it:
The parties entered into a stipulation where each side agreed to use Computer Assisted Review (CAR) to search and produce documents to each other. You might assume these Alabama attorneys were pretty sophisticated, and ahead of the curve, to specify predictive coding. That is, after all, what most attorneys would think was intended by a CAR stipulation. But no. Nothing could be further from the truth.
I have to say that I was unaware that Alabama had a coastline, still less an Admiralty Court. That serves me right, perhaps, for sneering this week at the US disdain (or ignorance as we call it in English) for the world beyond its own boundaries, which I expressed thus:
… and of which an expatriate Syrian apparently observed that “George Bush would probably have hit Cyprus or Jordan, but at least he would have done something”.
Note 1: This is nether a pro-interventionist nor an anti-American position; it just fits my theme.
In my defence, my knowledge of Alabama was formed when I was young by Tom Lehrer’s song I Wanna go back to Dixie which parodied the Deep South and its residents as being, how can we put this?, less than receptive to new ideas.
Note 2: I won’t link to this song. Many Americans skipped irony classes along with geography, and might miss the fact that the song was a dig at times and attitudes already archaic when it was written. In 1953. The idea of a group oblivious to changing times is one which ties in with my message.
Ignorance about eDiscovery, and of the tools and processes available to deal with it, is not a particular characteristic of Alabama, and is just as prevalent in Manhattan and the City of London. My theme indeed (to anticipate somewhat) is that a small firm in Alabama or in an equivalent English suburb or provincial city might easily run rings round a bigger firm if they have the right skills and project partners.
Few litigation practitioners, at least if pressed on the subject, would deny that complying with the formal rules of court, to say nothing of the need to find and to challenge evidence, requires at least a minimal level of knowledge and skill, those things for which they were trained and for which the clients pay ever larger sums of money. As HHJ Simon Brown QC observed in Earles v Barclays, “those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to”; the same might be said of those who enter into eDisclosure protocols without understanding what they are signing up to. The new severity in Lord Justice Jackson’s rules will almost certainly give rise to claims against lawyers by clients who find themselves without remedy thanks to missed deadlines or other failures, and those who don’t read Jackson’s rules may find themselves thumbing through Jackson and Powell on Professional Negligence instead. There are plenty of lawyers who well understand what is required. If you are not among them, then it pays to have on your side somebody who is, whether in the High Court in London or the Admiralty Court of Alabama.
Having read Ralph Losey’s article and tweeted a link to it, I added this:
Tim Strong, a disputes partner at Taylor Wessing, and one I would want on my side, replied with this:
He was right, of course, to draw attention to the ambiguity. I did indeed mean that solicitors ought to have a list of eDisclosure providers to hand, preferably companies they know something about, in the same way as they know something about the barristers whom they instruct in esoteric matters of law. They might usefully, however, also get to know some barristers who are skilled in eDisclosure and who can leap to their aid when disclosure issues arise.
This is not just because of the obvious benefits of knowing the rules, but because of the strategic and tactical advantages of being on top of the subject. Pushing an opponent to apply for relief from sanctions may give your client an advantage which it would be wrong (that is, potentially negligent) to ignore; on the other hand, excessive point-taking may be dismissed by the court as “regrettable” (see Gordon Exall’s post here for an example of this). Every application for more or for less disclosure may have a serious impact on costs as well as evidence, may itself cost a large amount of money, and may require technical knowledge, a good grip of the rules and not a little tactical skill. If you have a pig of a case, eDisclosure skills won’t win it for you, but they might help you to a better settlement.
[Note how I steered close enough to two clichés, one about sow's ears and one about lipstick, to make you mentally invoke them, without actually using them. I now go on to talk about imbalances between law firms without mentioning level playing fields.]
Further down the Twitter chain with Tim Strong, I said this:
As I say above, there are good defensive reasons for knowing the Civil Procedure Rules. My tweet implies that there are also positive reasons for becoming good at this subject, one of those “white spaces” where there is relatively little competition. There are plenty of law firms who do understand the technology and the budgeting, strategic and tactical implications; if you are not amongst them, then you need to know someone who is.
You don’t need to be a large firm with a smart Manhattan or EC4 address to be able to use eDisclosure skills to outgun and outrun the enemy (the imagery comes from the Bismarck, of which it was said that it could “outrun any ship it can’t outgun and outgun any ship it can’t outrun”. The Civil Procedure Rules are not supposed to resemble war, not least because of the duty to cooperate and to be proportionate, but it is perfectly proper, within those constraints, to use superior knowledge of the rules and of technology to wrong-foot an opponent who lacks them. A small firm with the right friends, whether eDisclosure providers or barristers, can severely damage a larger one who lacks those skills. More constructively, it can help ensure that any agreements with opponents (or proposals put to the court) actually mean something and might work.
It can also win the work in the first place, from in-house legal departments who well know (some of them at least) that eDisclosure affects budgets even where it may not affect outcomes.
It is perhaps like the ultimate leveller (ambiguity intended), the possession of nuclear weapons, with their capacity to enable small countries to compete with big ones. Tom Lehrer again provides the theme tune, this time with “Who’s Next?”
Apart from the timely line:
France got the bomb, but don’t you grieve,
‘Cause they’re on our side (I believe).
… see who turns up at the end:
Luxembourg is next to go,
And (who knows?) maybe Monaco.
We’ll try to stay serene and calm
When Alabama gets the bomb.
It could be you. Suppose that that law firm had looked more carefully for an eDiscovery provider (or more than one preferably) and done a proper analysis of the implications of deduplication – not just its bare expense but the savings and other benefits. Suppose that, instead of just copying an eDiscovery stipulation full of words they did not understand, they had taken advice on wording which would have helped their clients and stood proof against opponents’ criticism. Suppose – well, suppose all sorts of things about skill and knowledge and actually thinking through the problem and its solutions, and you arrive at the conclusion that the Alabama firm might have been able to outgun and outrun the shiniest firms in the land, its abilities being the equivalent of the bomb in Lehrer’s song.
Anyone can get access to these skills by employing the right people or hiring the right consulting firm. Who’s next: next to force a settlement on better terms than might be expected, next to win work they might have thought beyond them – or next to appear in a Ralph Losey post with the word “poor” attached?