e-Disclosure – cooperation, questionnaires and cloud

Yesterday I attended the 6th Annual e-Disclosure Forum at Canary Wharf in London, organized by the globe-trotting triumvirate of Chris Dale, Browning Marean and George Socha. It was a good program, with an audience comprising a mix of lawyers, litigation support professionals, IT practitioners, tech software and service providers and other assorted folks, like myself. It’s the second year I’ve attended and these were the key themes I picked up on:

  • Practice Direction 31B – not surprisingly this was a major issue throughout the day, considering may of those present for instrumental in drafting it, including Chris Dale and Senior Master Steven Whitaker (among others) and it only passed into the rules on October 1.  For those that don’t know, 31B amended the rues of civil procedure in the UK (the rough equivalent of the Federal Rules of Civil Procedure in the US), as they pertain to the disclosure of electronic documents (which can of course include email and other forms of communications). One aspect of the changes is a questionnaire to be used in more complex cases that involve a large number of documents. Not only does it sound to us like a sensible way of helping to to contain and get parties prepared for the case management conference (meet and confer in US parlance), but quite frankly it could be useful starting point  for organizations simply to looking to get their house in order to get prepared for future litigation.
  • Another key theme was the effect on recent UK cases on the way parties are now cooperating in case management meetings. One speaker, Jeremy Marshall, head of commercial litigation at Irwin Mitchell said that in his experience there’s a vast difference in terms of what happened before landmark cases such as Earles vs Barclays Bank in 2009 and the Digicel vs Cable & Wireless case in 2008 and what happens now. Companies know that if they don’t cooperate to make sure the necessary documents are disclosed, they could be penalized by the court, even if they win the case. For more on the Earles case and what it means regarding the destruction of documents see Chris Dale here.
  • Cloud. I had a lot of conversations with IT and legal people at the conference and they’re still not seeing the necessary granularity in service level agreements (SLAs) from cloud service providers. If you need to search your data for the purposes of e-Disclosure, it’s not clear in what format the data will come back to you or even if such a search is possible. That’s a bit of a deal-breaker, over and above any trepidation firms might feel about using cloud for any perceived security issues.
  • In general I detected a much clearer understanding on the part of US attendees of the issues in the UK market. Gone are the days it seems of assuming that the exhaustive e-Discovery process in the US is suitable without any alteration in the UK. The two countries obviously share a common law tradition, but like so many other things, there are distinct differences in the way litigation is done and that – aided in part by Chris Dale et al’s work – is now getting through to US vendors, which after all, dominate the market from the technology point of view.
  • Tips for next year to the organizers?
    • come up with a hashtag so we don’t write out ‘6th annual #eDisclosure conference’ in our tweets 😉
    • make the sessions a tad shorter
    • get a couple of additional panelists to mix it up a bit

But overall it’s the best way I know for taking the pulse of the UK e-Disclosure market in a single day.

We’ve also been active in this area ourselves recently with webinars on litigation readiness with Zylab and Katey’s participation on a Brighttalk webinar on cross-border eDiscovery. But most importantly, we have new e-Discovery research out in the shape of our cloud e-discovery [PDF]and cloud archiving [PDF] reports.

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.