I do not usually write for other publications. I have to produce quite enough words for my own blog, and I resent the sub-editing which usually goes with writing for third parties – they have sub-editors who have to keep themselves amused, which they usually do by frigging around with my punctuation and offering alternative wording for sentences which I have spent ages crafting. I have to say that, in addition to its other virtues (have a look at the rest of the Spring edition to see what I mean), Ethical Boardroom was good on this front.
The bait offered to me in this case was two-fold: first it was an opportunity to reach board level people who are not necessarily aware of developments in electronic discovery; and second, Jason Baron had written for a recent edition (his article Information Governance to Take Centre Stage was published in January). The implication was that if the magazine was good enough for Jason Baron, it was good enough for me; quite right.
There was a third attraction: I could write about anything I liked. You can deduce from the title that I covered the shift in responsibility for eDiscovery as organisations increasingly take control of it. That control may involve a company taking on software and staff to manage at least the early stages of eDiscovery with their own resources; it may involve the assumption of a greater degree of direction and control than hitherto; it may take the form of managed services agreements with, say, Iris Data Services, and a requirement that the external lawyers use them.
The subject was in my mind because Huron Legal had just published its IMPACT Benchmarking Survey on corporate legal expenditure and I had just interviewed Bret Baccus of Huron Legal on the subject (the video interview will be published soon). The same theme about client control had emerged from that.
I was also aware of a survey which Guidance Software had recently undertaken which pointed in the same direction, emphasising the growing number of larger corporations who are not merely doing the collection, preservation and culling, but dealing with first-pass review. I have written a paper on this in conjunction with Guidance Software which will be published soon.
Another element which is important (and which appears from the Guidance Software survey) is that many clients seem more willing than their lawyers to consider the use of advanced technology tools. Lawyerly caution is being overtaken by clients who are increasingly aware of the savings to be made.
There are, of course, many law firms who really get this and who are adjusting their own business models and practices to take account of new developments. Many of them, however, look like a petrol station on a route which has been bypassed by a fast new road. The clients will roar past, leaving the lawyers on one side, to be called in as required. Richard Susskind long ago identified the lawyers’ unique skills (that is, things which only they could do) as tactics, strategy and advocacy. The themes identified in my Ethical Boardroom article, and in the surveys by Huron Legal and Guidance Software, suggest that we are moving fast down a road where the other things, and particularly eDiscovery, are done by others.