e-Disclosure conference thoughts

Much, much later than I’d planned, here are my thoughts on the recent Thomson Reuters e-Disclosure Conference, held in London earlier this month, the program for which was ably run by Chris Dale, Browning Marean and George Socha. Chris has already penned his thoughts and so here are some of my key takeaways from the sessions:

• On the continuing challenge of preservation, collection and exchange: such challenges exist even at blue chip law firms. Parties still don’t discuss documents before case management (known as meet-and confer-in the US) meetings, despite rules in the UK saying they must do do. There was some trepidation expressed in that lawyers don’t want to reveal their set of keywords ahead of the meeting as it might indicate which way they’re thinking in terms of the case.

• On the challenges of handling electronically stored information (ESI) across the US, Australia, Canada, the UK and the other EU countries, Chris Dale pointed out that the UK  should be in an advantageous position vis a vis the rest of Europe due to its position within the EU, coupled with its common law disclosure/discovery tradition that the UK has and the rest of the EU does not. However it has to change certain things and the Civil Procedure Rules Committee is working on that in the form of a questionnaire and some other changes  and is due to publish its findings in early December. Master Steven Whitaker, Senior Master of the Supreme Court outlined some of the proposed changes and I’ve no doubt Chris will have more on this when the findings are published.

• On outsourcing litigation support versus doing it in-house, it was clear that both methods are preferred at different times and for different reasons, not surprisingly. But outsourcing is real, whether the legal profession cares to admit it or not. Junior lawyers in house are doing less & less first pass review as it’s done in countries such as as India, while experienced lawyers are not doing it at all anymore, which will have an effect on litigation support. The litigation support teams within law firms may not be growing, the number of project managers certainly is. The role of law firms as project managers as the next phase of e-Discovery/e-Disclosure is in line with what we’ve been hearing in our conversations with clients and vendors.

• On the use of technology for review, given the presence of technology vendors on panels it was not surprisingly claimed that smaller firms can get on a level playing field as big companies through use of technology. It was also claimed that manual reviewers are often justifying their existence to maintain salary and overtime levels, which is no doubt true in some cases. Anyway, it’s hard to see how someone can do eight hours of manual review a day without becoming tired and being prone to mistakes and comparing software against a supposed gold standard of human review isn’t such a gold standard after all.

• And finally, cloud computing, which is both scaring and stimulating the e-Disclosure industry in equal measure; well, perhaps scaring more than stimulating right now. As one speaker reminded those in attendance, it’s your obligation to know where your data is, even if you outsource it to a cloud data provider.

Overall a very worthwhile one-day conference and I’d recommend it to anyone wanting to get up to speed on the UK market and meet some of its key participants.