LegalTech, UK educational sessions and calls from law firms, an LPO conference, Irish eDiscovery, litigation as an invisible export, legal blogging in New York and eDiscovery in Germany all help to pass the time.
By and large, I find that the amount of work which has to be done in a year broadly matches the time available to do it. That is in part thanks to variables which I can control – the things I choose to write about as opposed to those which I must cover, and whether I go to bed at 2.00am or 3.00am – and is explained in part by a variant on Parkinson’s Law. That, you will recall, says that “work expands so as to fill the time available for its completion”. One way of defeating that is to leave important things until the last minute, ticking off the non-urgent things (which would otherwise never get done) so that the time available for completion of the urgent things is reduced. It infuriates conference organisers (for whom everything is apparently needed TODAY) but if I dropped everything to comply with their deadlines, I would never get anything done.
Sometimes, however, tasks stack up like aeroplanes at dawn over Heathrow (an example I pick with particular feeling after my last aimless circling of the Home Counties). February is invariably one of those times, thanks to the cuckoo which is LegalTech. Its three days always take at least two weeks of my life in preparing for sessions, getting there, being there and writing about it afterwards. The result is an uneven spread in my articles – I wrote six in one day just before I left but only two in the ten days after my return. I get bullied, you know. It took a while to do my report on LegalTech and, just before I published it, I received an e-mail saying “I sense some collective thumb-twiddling amongst your readers – the biggest show in town has come and gone and the site is still welcoming Digital Reef etc” (a reference to the last post which I did before I left, about new e-Disclosure Information Project sponsor Digital Reef). It is some consolation to find that Andrew Haslam has only just published his account.
It is worth, occasionally, just running through what is happening, to show how many subjects get swept together under the umbrella of electronic disclosure. It touches on a lot of topics, as the extract below from my slide set shows. I do not disdain PowerPoint, as has become fashionable, and use my slides at educational sessions to allow me to canter over the ground more or less without taking breath – the audience can always ask me back for expansion on discrete subjects.
It took a long time to write those two articles. The LegalTech one became a kind of self imposed challenge – how many people, firms, products and companies can one name in a single article whilst preserving a theme and a narrative which people might actually want to read? The Bribery Act post involved ploughing through the many articles which had been written on the subject of the UK government’s deferment of the act whilst I was away. Those who wish to keep up with this may care to read a comprehensive article in the Law Society’s Gazette last week.
eDiscovery Comparisons and Invisible Exports
What is the point of the trips abroad? How do they fit into the remit of something called the “e-Disclosure Information Project” whose name (since the UK is the only jurisdiction to use the word “disclosure”) clearly implies a domestic agenda? There are two reasons behind them. One I repeat often: the problems of managing documentary evidence are common to all the jurisdictions which I visit, and it makes sense to share the ideas – of rules, of process and procedure and of technology – which are being discussed elsewhere. The US remains somewhat inward-looking (except when it wants data from somewhere else) but we are fixing that slowly, and other jurisdictions, particularly Australia, Singapore and Canada, have thoughtful people who collate and compare what is being done elsewhere to feed into their own developing procedures. I am lucky enough to have the opportunity to go to these places and take part in the discussions, but my primary focus remains the Civil Procedure Rules of England & Wales.
There is a second reason for wanting to draw attention to UK developments, and that is a broader economic one. The provision of legal services has historically been a significant invisible export for the UK and for London in particular, one we run the risk of losing on several fronts. The diminution of London’s place as the world’s financial capital by a mixture of surrender to EU land-grabs and high taxation is beyond my scope, but its position as the forum of choice for commercial disputes is critical. I am interested in purely procedural matter, in terms of business efficiency and in the context of access to justice, but we must also send out the message that our courts are business-like places, and adapting to remain so. You may care to read in this context a speech by Lord Justice Carnwath called Rethinking the Legal Profession in the 21st Century – Future Models for Delivering Legal Services. There is good stuff in it about the role of our (or any) Supreme Court, and more, but the section relevant to my theme starts at paragraph 16 with a passage about legal exports from the UK – both in financial terms and in terms of skills. The quotation from George Dobry in paragraph 17 sums it up:
“The invisible export of legal services is of major public importance commercially, professionally and also politically. An ‘export’ of English law and its system is of precisely similar significance. The two ‘exports’ are actually indivisible, because the success of English commercial legal skills abroad is linked to the high regard for the English Judicial System, and the operation of the Rule of Law in this country…”
Involvement with UK lawyers
The core of what I do, however, lies in nuts and bolts back home. I gave two talks last week, one for a London law firm and one for government departments. My argument (which I articulate in stronger terms than I used to, following Master Whitaker’s judgment in Goodale v Barclays Bank) is that lawyers need to know the rules of court and to understand what lies behind the EDRM (Electronic Discovery Reference Model), but that these are not themselves the clients’ objective. The rules permit (indeed, they require) observance of the overriding objective, and judicial discretion is almost unfettered when it comes to managing cases to meet that objective – it is not called “overriding” for nothing; the EDRM gives us a map, but we do not have to plod stage-by-stage from left to right if the parties’ aims, the availability of technology solutions, and the interests of justice suggest a different way. Judges are not born to this, nor do they yet have training to equip them to self-start on it, but they have had careers based on picking up new subjects quickly. We need to learn how to lead them to a conclusion which maximises their discretion to do what is right with the tools which are available.
I am seeing a discernible increase in the number of calls from firms who recognize that the time has come for a review of their way of giving disclosure and who want to find out what third party resources exist. I do not make recommendations, still less get involved in RFPs, but I go through the categories of service and software and indicate who does what, leaving it to the firms to decide who to call. I am happy then to point them to the right person. One of the many things I get from that is a sense of how opaque the marketplace can appear to those making their first forays into it; most marketing is aimed at inducing the already knowledgeable to choose A rather than B or C, and is pretty impenetrable to those who know nothing of any of them or of the classes of software and service which they offer. Such calls sometimes lead to invitations to give one of the educational sessions to which I have already referred; sometimes the sequence is reversed – rules and procedure first and providers later.
As my diagram above shows, electronic disclosure/discovery touches on many other subjects as well as being an issue in several jurisdictions. I vary my diet (and yours) by covering some of these wider matters, and much of what is coming up in my diary does not directly relate to the rules and mechanics of e-disclosure in common law jurisdictions. Of the collateral subjects mentioned below, two (the Bribery Act and LPO) are obvious pools for me to swim in, since they involve tasks and technology which are part of or are analogous to compliance with civil edisclosure obligations. The third, legal blogging, is an extension of my marketing role.
Collateral Subject 1 – the Bribery Act
I have already mentioned the Bribery Act, where the crossover lies in the defence of “adequate procedures”. In addition to HR and auditing implications, it will be hard to demonstrate adequacy without proper information management. The principles are the same as those described by His Honour Judge Simon Brown QC in Earles v Barclays Bank when he said:
potential litigants…. need to anticipate having to give disclosure of specifically relevant electronic documentation and the means of doing so efficiently and effectively.
Collateral Subject 2 – Legal Process Outsourcing
Legal Processing Outsourcing, or LPO, also backs onto the subject of e-Disclosure. One cannot rely solely on technology as the solution to all discovery problems – technology is simply a set of tools to be used as appropriate within a wider set of business processes whose starting point is cost-effective ways of meeting the clients’ objectives. A growing trend (predicted, as with so much else, by Professor Richard Susskind a long time ago) is to outsource functions which others might do at least as well as you can and at a lower cost. In the context of litigation and analogous proceedings, LPO is not (as some seem to think) an alternative to the use of technology, since the process itself, and the results, will inevitably involve some technological holder. It is generally a way of delegating part of the function elsewhere.
Allen & Overy offer outsourcing as part of a menu of options offered to clients on document-heavy matters. Its litigation support manager, Vince Neicho, and I are speaking at a two-day conference on LPO on 2 and 3 March in London. .
Collateral Subject 3 – Blogging in Legal Business
What I do is essentially marketing, in the widest sense. It may look like purist proselytising for compliance with the rules, but it is really a sustained campaign to promote methods of doing business – by technology providers to lawyers, by lawyers to clients and, as I have explained above, by UK Plc to the global market. My chosen weapons include my blog and Twitter, both of which are available as methods to technology providers and law firms as a way to promote themselves. This is relatively straightforward for me – I speak only for myself, and as long as I avoid libel, stick to some basic rules of grammar, and express reasonably strong opinions without upsetting too many people, I can do whatever I like to get the messages out there. I also have the luxury that this is my business, not something ancillary to it, and I can choose to spend two days fine-tuning every sentence if I want to. It is very different if you will be taken as speaking for a firm or company, have professional and ethical constraints beyond mere common sense, and have a day job to do.
This then becomes my third crossover subject along with the Bribery Act and LPO. I am going to New York at the end of March to take part in a panel organised by the New York City Bar Association on the subject of legal blogging. Subjects include ethical implications, implementing a social media policy and social media in litigation. My role is to open the show with the proposition that an organisation can gain attention, authority and clients with a blog but can also lose them, even before professional and ethical considerations are considered. My invitation comes through Denise Backhouse of the e-litigation department of Morgan Lewis – a firm which has established itself at the junction between the practice of law and the use of technology and gone on to use that as a successful marketing tool. My agenda is, to some extent, set out in my article Twitter, bribery and 37 corporate counsel in a big virtual bar.
Meanwhile, I missed a gathering of UK legal bloggers last week. Naturally, each of those who was present has written about it, and if I point you to the report by Ashley Connick, it is because his came up first when I went looking for something to link to.
All that and more
Everything else which is going on fits within one of these topics or bumps up against it. Lord Justice Jackson’s “menu option” of possible disclosure orders (as opposed to the present default of standard disclosure) is being considered by the Civil Procedure Rule Committee. I had a visit from an Irish barrister, Rithika Moore-Vaderaa, the author of a paper called Discovery of Electronically Stored Information – the New Rules, who is studying the ediscovery rules of other jurisdictions which may be relevant to Irish thinking. I was visited also by Bill Belt and Daryl Shetterly, ediscovery specialist partners from US firm LeClairRyan; as we walked round Oxford, we discussed, amongst many other things, the differences between the English and American character, temperament and language which feed through into the whole business of sales and marketing, with examples drawn from the forthcoming royal wedding and My Fair Lady. If this makes it sound as if we trivialised it, we did not – good marketing turns on bat-squeak minutiae which includes having a feel for the audience.
There are other conferences coming up. I am doing a couple of internal sessions with Symantec this week. In the same week as the New York blogs session, I am moderating an e-discovery panel in Frankfurt for AccessData, with major corporate and other speakers. There is a webinar for LexisNexis with Professor Dominic Regan on 27 May. The wires begin to hum with plans for IQPC’s Document Retention and E-Disclosure Summit in London on 10 and 11 May, where I am involved in a few sessions, and there is at least one US conference in there somewhere. There are papers in various stages of drafting, ongoing discussions on various topics and much else on one or more of the topics mentioned in my e-disclosure-centric diagram.
With LegalTech out of the way, however, the hump is behind me. Most of the pending things are either prepped, or need little prepping beyond turning up, or are far enough off for Parkinson and his Law to justify deferral, and the more normal rhythms of life take over again.