Ups and downs in a dismal summer

By | 17th July 2012

I had hoped for a brief period of calm between the emotions caused by the gallant failure of Andy Murray to overcome the peerless Roger Federer and the onslaught Londoners will have to face shortly as the start of the Olympic Games approaches.  Some hope!  The gap, such as it  is, has been filled by broken motorway viaducts, busloads of athletes getting lost en route to the Olympic Village, and hundreds of ‘security guards’ going AWOL even before the action starts.

I did allow myself a crumb of comfort from the recent 4-0 drubbing of Australia, with one match abandoned without a ball being bowled (or it would almost certainly have been 5-0, so woeful were the Aussies). However satisfying beating Australia always is to English cricket lovers, this apology for a series between great cricketing rivals has absolutely no bearing on the fight for the Ashes next year and was little more than a rain sodden exercise in money grubbing by the respective cricketing boards.

As if that was not enough, I scan the news daily to see whether there is a threat of a strike by the country’s umbrella manufacturers in what is fast becoming a unique occurrence, for even the British climate, of a year without any summer at all! I am sorry to say that not even the prospect of fine weather in October and November (not yet promised) is likely to put a spring in my step.

Before I get to the real crumb of comfort, I noticed in my trawl through the daily news and emails which pile up in my inbox that the plaintiffs in Da Silva have filed a motion of objection against Judge Peck’s refusal to recuse himself because, inter alia, of his alleged links with the defendants’ counsel and his appearance as an unpaid speaker on a panel at Legal Tech in January 2012 sponsored by Recommind, whose technology Axcelerate is the subject of argument in this case. The notice is here  [PDF  thanks to Electronic Discovery Law].

It is always dangerous to comment on reports of litigation when one is not fully aware of the facts. However, as a result of the huge worldwide interest in this case and the many articles and commentaries it has spawned, I feel qualified to wonder whether the plaintiffs might not be better served if their lawyers were to abandon what has doubtless become hugely expensive satellite litigation and were to turn their legal minds to sorting out discovery and getting their clients’ action on for trial.

Leaving all that on one side, and like the occasional ray of sunshine appearing between the endless downpours and thunder storms of late, I have come across a piece of research by David Cowen of The Cowen Group which suggests that there has been a surge in e-discovery work at law firms and corporations in 2012:  Survey Shows Surge in E-Discovery Work at Law Firms and Corporations.

The intriguing part of David Cowen’s report is not so much the surge in e-discovery work (70% of law firms report an increase in e-discovery work for their litigation support and e-discovery departments) but the comments included from a variety of players in the market. This is a report on what US law firms are seeing based on research in the US, but as so often is the case, there is no reason to think that the sentiments expressed and the views reported do not have a wider and more global significance.

The report is quite short and none the worse for that. It contains statistics for those who like that sort of thing as well as points to ponder. For example, while Cowen reports that firms expect to increase headcount and/or purchase new technology, he also reports that corporate legal departments are feeling the pressure to “do more with less” in-house to keep external costs down. Is there a conflict between the stated intention to outsource more while at the same time increasing staff recruitment? Watch this space!

Predictive coding gets the nod too with a 19% increase in firms using predictive coding through an outside vendor.

However there is also a note of caution. He says:

“Continued and accelerated growth is always welcome news, and is even more reassuring today. However, it is important to keep in mind that this growth in e-discovery demand is the result of both more litigation and an exploding, under-managed data footprint at corporations.”

And as a headhunter, he offers this career advice:

“Educate yourself on the latest evolving industry trends, invest in relationships, and be an active participant in helping your executives, your department, and your clients “do more with less”.”

For hard pressed lawyers trying to find jobs, David provides this crumb of comfort urging would be lawyers to adopt new technology skills:

“This is a tremendous opportunity for recent law school grads with an optic and penchant for math, statistics, and technology. I see a clear path to the front of the line in many litigation departments.”


But, wait! Just when you thought that, while it was not particularly warm, it was at least safe to go back in the water, the news breaks that, despite technology assisted review still being the hottest topic around in this arena, Recommind has patented predictive coding!

The topic is covered by an article in Above the Law:  Predictive Coding Patented, E-Discovery World Gets Jealous.

It is far too early to say what it all means, whether there will be challenges to the patent, whether it will stand up or whether it is too broad or too restrictive. Doubtless we will hear more in due course as others in the marketplace react to the news that one of their own has sought to steal a march on the competition.

A dismal summer, perhaps? It seems so, but whatever your view, it is certainly turning into a season with its ups and downs.

Photo: Worcester New Road Cricket Ground (ECB)