Mirror, mirror on the wall

By | 19th November 2009

5 weeks to go until Christmas!

Having eschewed anything even faintly redolent of Christmas for the last two months since I saw the first Christmas decorations appear, I am bound to concede that with only a few days to go until the start of Advent, I am going to have to start to think about Christmas.

This blog is intended to take a partly serious and partly light hearted look at the world of e-Discovery. We are entering the season of end of year reviews, predictions for the New Year and pantomimes.

Before long, commentators from all walks of life will be filling column inches with clever ideas about 2010 and patting themselves on the back for all the predictions for 2009 they got right while conveniently forgetting the ones they got wrong!

This post is not intended to be one of those!! However, as we approach December, it is the right time to muse about where we are in the world of e-discovery. There may be few stories about angels, heavenly choirs, elves or pixies and more a motley collection of slightly related jottings, but, I hope, it will be none the worse for that. You can pick and choose “the fairest of them all”.

  • Litigation Funding: As a lawyer commented to me the other day, “everyone seems to be jumping on the bandwagon”. Certainly there has been a series of announcements in recent months about new ventures seeking to raise capital to fund litigation, largely in the US, but more recently in the UK as well. I have mentioned before that I am aware of several ventures which have not yet made it into the market place, and others which have already gone public in press reports. In the last few days, I have seen a report that a company called Alvaro is seeking to raise £50 million for this purpose and a report that legal expenses insurer 1st Class Legal has formed a joint venture with Litigation Solutions to launch a £50 million Isle of Man domiciled fund. Add to these, the high profile AIM float of Burford Capital (see  ‘Funder bolt and lightning‘, 3rd Nov. 2009 and ‘Third party funding and the credit crunch‘, 25th Sep. 2009), and you will see what I mean about the space becoming crowded.
  • Conferences: There seem to be more and more of them! Daily I am sent details of courses on this and courses on that and courses on the other but it is striking how many there are on e-disclosure and related issues.
  • Trends: It has been clear to me for some time that there has been a trend towards making e-discovery more mainstream. I am thinking of last year’s cases such as Digicel, Abela and Hedrich, and 2009’s own Earles v Barclays Bank PLC. In addition, we are promised a new Technology Questionnaire and a new PD for CPR Part 31 and we await the soon to be published final report on civil litigation costs by Lord Justice Jackson. All these events presage a greater emphasis by the courts on enforcement of current obligations under the Rules coupled with a greater willingness by the judiciary to get to grips with the issues of e-disclosure.
  • Knowledge: It is said that knowledge is power. Over the past 12 months, my colleagues and I have continued to visit lawyers in London and in the regions to talk to them about what is happening in the world of e-disclosure and to discover what they are doing every day to advise their litigation bound clients to manage the electronic data which, we are told, accounts for 90% of company documentation these days. I think that most lawyers would accept that their knowledge is not as great as it should be. There are, of course, honourable exceptions and they are not all in the capital, but, in general, the knowledge and awareness of the simple rules is still pretty low. As one firm admitted to me recently, “much of this has come as news to us”.
  • Why is this? There may be a number of reasons but for present purposes I will confine myself to my own musings on the subject. I am sorry to say that there is much “justifiable inefficiency” out there. After all, why do something in a different way if the old methods still work after a fashion? This will change with time, either because clients refuse to pay their lawyers to do something at which they are not expert or because the CPR and the judges will refuse to allow recovery of costs for an inefficient disclosure exercise. (see Earles).
  • Many lawyers are frightened of the process of e-discovery. Straight away I will acknowledge that part of the reason for this is the failure of the industry itself to make clear in simple terms what is available and how it can help and to provide this information in a readily accessible form for lawyers to look at in their own time. That must also change.
  • Other reasons may have to do with the perception that e-disclosure is difficult, time consuming and expensive. Again, I will admit straight away that all of these can be true. But it does not have to be like that. There are a number of companies in the sphere of forensic document collection, e-document management and e-disclosure services who are skilled at assisting law firms and their clients to find, access, collect and process electronic material so that the lawyers and their clients can get on with what they are good at, namely reviewing and analysing the material and advising their clients on the real issues in a case leading to an early assessment of what really matters and the possibility of good arguments being properly supported, bad arguments identified and settlements achieved and/or successful applications for summary judgment. Often this can be very cost effective, quick and reliable and not particularly complicated. All this will save costs for the client.

I could go on but you may well be thinking that I have said enough!

My message and my predictions for the future in 2010 are as follows:

  1. There will continue to be a steady increase in contentious work for lawyers.
  2. There will be more need than ever to pick a service provider who can be trusted to guide lawyers through the detail of a successful e-disclosure exercise or an early case review.
  3. Judges will be increasingly prepared to “intervene” as in Earles and will manage cases more aggressively.
  4. The Jackson report will encourage the appropriate use of technology in an effort to drive down the cost of litigation.
  5. Third party litigation funding will become more available as investors warm to the idea of putting money into companies to fund litigation. This will be good for litigants, good for lawyers and good for the investors, always assuming they make the right decisions on the cases to fund, and in any event the potential investors are not earning anything on their cash deposits at present!
  6. Service providers will get better at setting out their stalls to make it easier for lawyers to see who really is amongst the “fairest of them all”. I have in mind the use of media such as YouTube, increasing use of podcasts, simplified and flexible charging structures and the like.
  7. More lawyers will need to get to grips with the issues raised by the existence of ever more sophisticated technology. Equally, they will start to see the benefits of the technology and the assistance that the service providers can give. It will no longer be acceptable to plead ignorance of the rules.
  8. My colleagues and I will attend more conferences and visit more lawyers.