I am one of four chairmen at a conference run by Today’s General Counsel Institute and called eDisclosure for the Corporate Market “The Exchange”. The others are Browning Marean of DLA Piper US, George Socha of EDRM fame and David Kessler, an eDiscovery partner at Fulbright & Jaworski.
The event is aimed at corporate counsel and their staff, and its format is rather different from most such conferences. With a few exceptions, instead of platform talks and panels, we have round-table discussions led by moderators with eDisclosure experience in law firms, companies and providers as well as the judiciary in the form of Senior Master Whitaker.
The format is one which has been very well received in the US, focusing less on didactic pronouncements and more on client objectives. Regular readers of this site will be aware that, whilst I do not downplay the burdens and risks of electronic disclosure, I am more interested in how one can use the rules for positive reasons and on the increasing overlap between the courts’ objectives and those of the clients.
Neither are much interested in plodding through Part 31 and the case management provisions as simply a set of formal obligations – they are that, of course, but Lord Justice Jackson’s focus, building on what had gone before, is on early assessment of scope, on transparency and predictability, on active judicial management, and on arriving as quickly and cheaply as possible at what really matters.
Senior Master Whitaker is, of course, not only the leader of the working party which drafted the eDisclosure Practice Direction 31B, but the judge who gave us Goodale v The Ministry of Justice, a judgment whose focus is on arriving by the shortest route at what really matters, on reducing the volumes for review, and on the use of technology.
A high proportion of the agenda at this conference is devoted to the rules, on non-compliance with them and on the penalties for non-observance. We have a session also, however, on how law firms should organise themselves with “positive case-winning and client-getting reasons for managing eDisclosure properly”.
We also look at the challenge of information governance and records retention – that is (in this context) at ways of reducing the volumes of information held by an organisation, not only minimising the burdens of disclosure when that is required but exposing the information which a company actually needs to do its business efficiently.
Civil litigation is not the only context in which the disclosure of electronic documents is required, and we have a session also dealing with a regulatory investigation.
Another session is about using the right technology and in coupling it with processes and the use of external resources where appropriate to keep the costs down whilst still making a profit.
The round-table approach is an interesting one. You can take or leave the word “colloquium” which is sometimes used (I’ll leave it, thanks) whilst retaining the idea that those who deal with electronic disclosure issues daily have something to share both with others who are in the same boat and with those who can see the problems looming.