A little later than normal, I have remembered it is the time of year for predictions. Usually this happens in December or early January so, on any view, I am a fraction late this year.
The Society of Computers and Law publishes predictions gleaned from a number of people in the IT and E discovery industry each year.
This year, we were asked not only for our predictions but also to say what we thought was the most surprising development of the past year and to comment on what we thought was the most surprising event which had not happened in the past three years.
You need to be a current SCL member to access the article but as a taster I reproduce below my own contribution. My thoughts were:
- An increasing number of litigation lawyers will realise that they need to have some basic understanding of the concept of electronic disclosure. In my view, it is already difficult, if not impossible, to discharge the obligations which lawyers owe to the courts and to their clients without a consideration of this issue. A failure to engage with this issue is bound to result in a negligence action against a law firm before too long. 2014 will be the year when saying there is no need to engage with this issue ceases to be a realistic option!
- Related to the above, it will become mandatory for lawyers to undergo training in e-disclosure. This is not really a prediction but more a necessity! It also comes from the Jackson Report (Chapter 37, paragraph 2.9) where CPD training in e-disclosure is recommended.
- There will be a substantial rise in the number of cases involving e-disclosure where lawyers will make use of predictive coding/technology assisted review where that technology works well (e-mails and text files, for example). Lawyers often say they are waiting for the “right” case. In the USA, they have found a number of “right” cases. It will happen over here too.
- Clients will increasingly take the initiative by taking matters into their own hands. After all, why would they continue to pay for external law firms to handle the issue of e-disclosure if they are no good at it? We are already seeing cases where the end client engages with an external service provider (ESP)before the law firm sees any of the data. This will increase particularly where the ESP offers consultancy advice throughout the currency of the case.
- There will be litigation arising out of the new costs budgeting rules, leading to a further increase in the cost of litigation rather than the decrease intended by the Jackson Big Bang reforms. This may, however, only be a temporary phenomenon, because as matters settle down and the reforms become embedded into the culture, there will over time be less need to argue over such issues particularly if the courts are robust in the way they deal with the early cases.
- 2014 will see the beginning of the end of the billable hour…….only joking! However, clients will continue to search for alternative ways for lawyers to charge for their services.
- And most surprising non-development over the past three years? I am not aware of any case where the outcome has actually turned on an e-disclosure point. Many cases have involved issues related to e-disclosure but I do not know of any where the actual result of the case was materially affected other than by an award of wasted costs, for example.
- Most surprising development? Is there a crack in the previously solid wall of US discovery practice which has traditionally delivered a WMD (“weapons of mass discovery”) approach to litigation? An article by Philip Favro of Symantec and Utah District Court Judge Derek P Pullan in the Michigan State Law Review volume 2012, entitled “New Utah Rule 26: A Blueprint for Proportionality” suggests there may be.