Compliance with the demands of an e-disclosure diary

I don’t think I envisaged a peaceful life when I decided to commit all my time to promoting electronic disclosure, but I am not sure either that I foresaw this much activity compressed into a short space. It is just as well that I enjoy it. My original policy never to say no to anything which will get an audience for the subject has had to be modified a bit – double-bookings are difficult, for one thing. Every event involves preparing slides and notes, not just turning up on the day, and the everyday stuff – researching and writing – goes by the board when there is always something happening or about to happen. I would not want it any other way but it would be good to have it better spaced. A summary will have to suffice for now, and the summer promises time to catch up.

7Safe signed up yesterday as sponsors of the e-Disclosure Information Project. It must be something about the kind of work they do, but forensics people seem to make faster decisions than most – a lunch on one day and a commitment the next is good going. There is more to 7Safe than forensics, as their web site shows, but the arrival there of Adam Page from Clifford Chance shows a serious commitment to the e-disclosure market. I will do a proper welcome post when the events of the next few days are behind me.

I spoke yesterday at a lunch organised by Autonomy at the Ritz. I like events of this kind – there is time to talk to the guests in between the presentations. This is not easy at the usual conferences, whose events are packed too densely to allow such inter-action. I also have licence at these occasions to take a subject of my choice, within the broad heading of compliance. Autonomy showed us how to find sound clips out of what might be thousands of hours of telephone records. I took as my heading What Really Matters, inspired by the name of the song What Really Matters To Me released last week by The Phoenix Fall,whose drummer is my son Charlie Dale.

Compliance takes various forms, and I gave examples. There is the strict and proper compliance which the FSA requires (“be very afraid of the FSA” as Chief Executive Hector Sants said recently). We have the dull little people at local authorities, who “comply” with a British Standard “topple-test” by destroying gravestones indiscriminately because that spares them the burden of having to think. To them, the British Standard relieves them of trying to discriminate between hazard and risk, or of making any sensible assessment of risk. Compliance finds a different form again with government ministers. They force us to comply in our personal lives with their ideas of what is right whilst, as we now know, fiddling their expenses or their taxes or, in one high-profile case, both at once. “We complied with the letter of the law” some of them say.

This trail leads us to the strict rules of disclosure and the discretion given to parties and judges to do what is right, where strict compliance may seek a “perfect justice” (as Lord Justice Jacob put it in Nichia v Argos) which would “actually defeat justice”. It is not in fact a derogation from the rules to seek a proportionate balance between cost and value – far from it – but there is much to be done to educate those who stand firmly on what they see as a strict duty to disclose everything and those who do not know what the duty is. We are winning, I think, albeit slowly.

I will develop this notion of multiple levels of compliance in due course – it merits more time than I have now and, besides, I have another platform coming up (the keynote speech at the Ark Conference on 8 June) at which I want to take these ideas further. They relate equally to big cases and to small, and are as relevant in other jurisdictions as in the UK.

Those at my table complained that I had not played them the song. I may have broad licence at Autonomy’s lunches, but playing my son’s band’s singles to a captive professional audience probably goes too far.

Anyway, I had to rush off without even waiting for the Ritz’s splendid-looking pudding to get back for a conference call. We have a judicial panel on Day 2 of IQPC’s Information Retention and E-Disclosure Management Conference next week when Judge Grimm, Judge Facciola, HHJ Simon Brown QC, Senior Master Whitaker and I will discuss UK e-disclosure developments and get a US perspective from the two leading US judicial e-discovery judges, moderated by Patrick Burke of Guidance Software. In the evening we have a mock disclosure hearing, which I have written to pull out of the UK cases – Digicel, Abela and Hedrich –  the points which deserve most attention from practitioners. Judge Brown and barrister Clive Freedman play the disputing advocates, and Judge Grimm and Judge Facciola are a composite judge before whom no unprepared advocate would want to appear. Again the principles apply in every court and in every case with any significant volume of documents. IQPC are offering tickets separately for this event – use the link above to contact them.

Before then I am off to Orlando today for CEIC 2009 where I am sitting on an international panel with Seamus Byrne from Australia and Patrick Burke from Guidance Software. There is also a day’s meeting of Guidance Software’s Strategic Advisory Board before flying back in at dawn on Day 1 of IQPC’s conference. Could be wearing, not least having to drag my formal London clothes to casual Florida and back.

Nor is the following week much more relaxing. Lord Justice Jackson is holding a meeting in Birmingham on Tuesday to discuss a proposal for a tight regime for controlling litigation costs, we have a meeting of Master Whitaker’s drafting group, and I have a paper to write for the  Sedona Conference Cross-Border eDiscovery and Data Privacy Programme in Barcelona. All good stuff though.

None of this will be as wearing as what Nigel Murray of Trilantic will be doing. His arduous bike ride across Northern France for Help for Heroes starts on 24 May. See his blog for the full itinerary and for the link to the page where you can add to the most impressive sum which is already pledged.

Further posts here are unlikely between now and the end of IQPC.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Autonomy, Case Management, Court Rules, Courts, CPR, Discovery, eDisclosure, eDisclosure Conferences, eDiscovery, Electronic disclosure, Forensic data collections, IQPC, Litigation, Litigation Support, Lord Justice Jackson, Trilantic. Bookmark the permalink.

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