End of the beginning

By | 16th August 2011

Which is closest to your view of disclosure/discovery?

•Technology created the problem so technology needs to solve it.

•Electronic discovery is often the tail which wags the litigation dog, using up between 50% and 80% of the litigation budget.

•I am afraid not to know it because it dominates every part of the case.

•None of the above.

The debate goes on and what is surprising is how many divergent views there are about a subject which ought by now to be mainstream. After all, no litigator can now be doing his/her job properly if they do not at least consider the use of technology when deciding how to manage the data in the case or deciding on the strategy to be adopted.

The views above are not original but come from an article in Law Technology News – Lawyers Struggle to Get a Grasp on E-Discovery, 10th Aug, 2011 – wherein Gina Passarella discusses how lawyers struggle with e-disclosure/discovery. The article is full of quotes from lawyers and so-called IT experts. What is beyond doubt is that the take up of technology by lawyers can seem from time to time somewhat disappointing. There are obvious exceptions notably among some of the small to mid tier law firms who have grasped the fact that they need the help technology can give to compete with the larger firms on something approaching a level playing field.

I disagree wholeheartedly with the view expressed by Ben Barnett, who is described as Dechert’s e-discovery practice guru, that technology created the problem and should provide the solution. I prefer the comments by, amongst others, Stephanie “Tess” Blair of Morgan Lewis & Bockius that “…we’re at the end of the beginning with e-discovery.” Or Thomas J Smith of K&L Gates: “All the tools are in place, but it is up to the judge to use them and the parties to ask that they be used.”

I think Mr Barnett is wrong because I do not accept that it is technology that has created the problem. It is technology which now provides a solution for lawyers to manage their clients’ data in a timely, cost effective and efficient manner.

The article concludes as follows:

The biggest problems with e-discovery fall into a few broad categories — cost, time, slowly developing case law, and a general lack of knowledge or anxiety over how the process works. In the most simplistic sense, time will heal those wounds as technology improves, courts generate more case law or procedures for handling e-discovery and lawyers gain a better understanding of the courts’ views toward e-discovery and how the attorneys can best manage the process.”

I prefer the glass half full analogy myself – this is the end of the beginning rather than the beginning of the end! If you agree, may be we should talk! If you disagree, perhaps we should talk too.

After all, you have nothing to lose but your prejudices.