Recent posts by Hobs Legal Docs remind us that the problems raised by e-Disclosure are resolved by adherence to principles like proportionality as well as by the selection of appropriate technology.
You don’t need scientific proof (though it exists, apparently) for the proposition that your brain does one of two things when subjected to too many choices: after an attempt to assimilate and evaluate all the options, it either abandons analysis and plumps for something by instinct or gives up the selection process entirely and does without whatever it was which was being considered.
Something similar happens with words like “proportionality” which have multiple potential meanings and no certain definition, and subjects like “cross-border eDiscovery” which sounds like something which other people do, and only occasionally. They quickly become unnoticeable, like ambient music in a shop or the chatter of radio announcers – you have a vague idea that they are there but lose focus on content and meaning.
EDiscovery / eDisclosure has all these elements; multiple providers offer similar-looking solutions with terminology picked from a narrow vocabulary which includes polysyllabic words like “proportionality” and expressions like “cross-border eDiscovery” whose meaning gets lost with every repetition. All these things do in fact have meaning and potentially have daily implications for lawyers. In practice, proportionality is usually invoked only retrospectively when the lawyers are called upon to justify an alleged under-disclosure, and however important it appears at US eDiscovery conferences, UK lawyers give little thought to the implications of collecting documents and data from other jurisdictions. Read the rest of this entry »