Coughs and sneezes

By | 8th January 2013

There was a time when it was genuinely possible to describe software used in e-disclosure in terms which effectively distinguished between particular offerings on the basis of the “bells and whistles” which one bit of technology possessed in contrast to the next piece of software.

Nowadays, I believe it is widely accepted that many of the different technologies on the market do approximately the same thing in this area. In order to distinguish one from another, given this “coming together”, it is nowadays more helpful to concentrate on the way in which a particular technology can be made to operate and the workflow involved.

On the legal side, I believe we are seeing a coming together of the approaches being adopted by the courts in the US as well as in this country; if not a coming together, at least it is clear that there are increasing similarities.

That is my excuse for drawing attention to the stream of cases emanating from the US on e-discovery/predictive coding and the like. The old adage that when America sneezes, the rest of the world catches a cold, is pertinent here. If the rest of the world does not catch a cold when the US sneezes, at the very least it has to sit up and take notice.

In a recent post entitled  Impatient US judges push lawyers to be more proactive in early stages of litigation – what about the UK?  Chris Dale comments on the recent Georgetown Law Advanced e-discovery Institute conference in Washington where a stream of well known judges in the e-discovery sphere commented on this phenomenon.

He also referred to an article by Monica Bay in Law Technology News Impatient Judges Push Lawyers to Dive Into E-Discovery where the message was that lawyers need to be more proactive in the early stages of litigation.

This has been the theme of many blog posts over the past 12 months and serious litigators should take the time to read both Chris’s post and the articles he refers to including Monica’s.

I merely draw attention to two comments which particularly caught my eye:

Firstly Monica says this quoting Judges Grimm, Scheindlin and Peck:

Grimm addressed the importance of pre-motion conferences, and urged the audience to take them seriously and get involved early. “It takes a particularly dense litigator not to get the message.” Scheindlin agreed, urging lawyers to take advantage of the conferences to work out discovery protocols. But Peck reminded the audience that not everyone is drinking the Kool-Aid: “We still have to remember that the key difference between the old days and electronically stored information is that so many lawyers still do not get it. There is a lot of learning that still has to be done.”

Chris concludes his post with the following comment which carries added weight as we enter the run up to the introduction of the new rules here in the UK in April:

“It is the job of the lawyers to set out the options and their implications based on their early collection of information about their clients’ data, on a knowledge of the options which exist to manage that data, and on the outcome of their informed discussions with opponents. In the UK, that duty, and the matching duty of the judge to make proportionate decisions is codified in the rules and will be more so after next April.”

My concern is that many lawyers have not yet got this message and that they will come badly unstuck in April if not before. For a further discussion on this subject see my recent podcast where Chris and I discuss the impact of the new rules here.