Sometimes an unconscious theme develops during conferences. Appropriately, perhaps, given the “IQ” element in the organiser’s name, the point which recurred in Sydney was the use of human intelligence in parallel with the processing power and clever technology to get as early as possible to the things which matter. That phrase “as early as possible” came up a lot, not least because (as I noted when I commented on it – see Terms of Reference for Australian Discovery review), the Australian Attorney General’s Terms of Reference for the pending Discovery Review uses those words three times in their few lines.
Beth Patterson of Allens Arthur Robinson observed, for example, that one might be able to count whole directories in or out by having someone with the appropriate skills and a bit of brain just look in them; if they are patently irrelevant, why include them in the future stages? Michelle Mahoney of Mallesons said that dependence on raw processing power alone meant taking the thinking out of discovery; computers are very good at many things, but they cannot think. Eddie Sheehy of Nuix, unsurprisingly as strong an advocate of intelligent computing power as you will find, recommended giving a couple of the team’s best brains a day or two towards the end of the exercise to try and pick holes in the result by going in any direction they thought fit, trying to find documents or categories which had been wrongly included or excluded. For the third conference running, Equivio (who were not involved at any of them) was praised for the way its products used the best of technology and intelligent human input. And I used my stock phrase “the best technology lies between your ears”.
I quite like opening the batting at these conferences. The audience is awake, no-one can have stolen your thunder by covering your chosen ground, and a keynote speaker has licence to roam more widely than one with a defined topic. I merged my session with that of Senior Master Whitaker – I gave a short introductory speech, and used the rest of the double session for an interview-style discussion with Steven Whitaker about UK developments. My topics in opening included the international community of interest in ediscovery; the relative importance of rules and processes on the one hand, and discretion, proportionality and the clients’ actual objectives on the other; and the changing relationship between clients, their lawyers and the technology suppliers, with the possibility that the lawyers will get marginalised in that relationship. Steven Whitaker took us through the key points of the Jackson Report, the range of disclosure options in the draft Rule 31.5A, and the proposed Practice Direction and Questionnaire. We took the cases between us, Steven Whitaker covering the ones which turned on the law, and I taking those in which stupidity, ignorance and incompetence were the main factors (there is something about being in Australia which encourages plain speaking). Read the rest of this entry »