eDiscovery Daily Blog

• March 4, 2016

This is the sixth of the 2016 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year to get their observations regarding trends at the show and generally within the eDiscovery industry.  Unlike previous years, some of the questions posed to each thought leader were tailored to their position in the industry, so we have dispensed with the standard questions we normally ask all thought leaders.

Today’s thought leader is Chris Dale.  Chris is director of the UK-based eDisclosure Information Project.  Chris qualified as an English solicitor in 1980 after reading History at Oxford. He was a litigation partner in London and then a litigation software developer and litigation support consultant before turning to commentary on electronic disclosure / discovery. The e-Disclosure Information Project disseminates information about the court rules, the problems, and the technology to lawyers and their clients, to judges, and to suppliers. He was a member of Senior Master Whitaker’s Working Party which drafted Practice Direction 31B and the Electronic Documents Questionnaire. Chris is also a well-known speaker and commentator in the UK, the US and other common law jurisdictions.

What are your general observations about LTNY this year and about emerging eDisclosure (eDiscovery) trends overall?

{Interviewed the first morning of LTNY, so the focus of the question to Chris was more about his expectations for the show and also about general industry trends}.

I used to check off all of the sessions that I planned to go to, then so many meetings and other things came along that I’ve long given up even looking at the schedule.  I do my interviews and other meetings and if I have time for anything else, it’s a luxury.  I do a lot of video interviews, and two panels in addition to the one I did yesterday, and that’s enough.

In technology terms, the stress on visualization is important because it will induce lawyers in to take a look at the demos.  The idea that they can see broad pictures and go down to the details is becoming more interesting and I’ve been impressed with some of the products that I’ve seen.  Trying to get the lawyers in and trying to get them to see the time saved and reduced time scales that might actually give them a strategic advantage is key to getting them to adopt the technology and visualization is a key part of that.  One of the troubles here in the US is that everybody thinks defensively still.  The mindset is still very much post-Zubulake and “we’ll be in trouble if we don’t do this”.

One of the potential advantages that I’m seeing specifically in visualization is that people might actually begin to see benefits.  There’s evidence in there, not just threat or risk.  It’s less of a “black box” to the lawyer.  There’s a strategic advantage in knowing early on what you’re going to do.  There’s more to that than just visualization, but we’re seeing tools that are aimed at that.  All those years when everybody talked about Early Case Assessment, it became just a phrase.  But now, we’re beginning to see tools that genuinely make that possible.  It’s a tactical advantage of being on top.  Craig Ball is always talking about whether you would rather be the one who can say “we’ve got this, this and this and that and that” and “this is our document retention policy and how we deal with BYOD, how about you?”  The tactical benefits from having this information early on is a huge benefit for lawyers.  The more you can visualize and the less it seems like a “black box”, the better.

One trend that I’ve observed is an increased focus on automation and considerable growth of, and investment in, eDiscovery automation providers.  What are your thoughts about that trend?

Other than for those who are early adopters, these providers will, to some extent, meet the same resistance because it is seen a “black box” that is doing the lawyers’ job for them and the concern will be the double-level of “what happens to my job” and also “how do I know it’s doing it right?”  For these providers, the education side will be just as important to the automation side in allaying those fears and concerns and showing them that it can do the processing just as well and faster.  Clearly, whether you’re talking about processing files or cleaning the house or whatever, anything that can do the job faster and easier has got to bite.

How do procedures and rules in the UK differ from those in the US with regard to handling of electronically stored information?

One difference is that proportionality really does mean something in the UK and is hammered down your throat at every opportunity.  Here, there are some judges who get the point, but there are an awful lot of lawyers who don’t get it.  The idea of balancing risk against cost, which is what proportionality really amounts to, is tipped heavily by the point that I made earlier about risk being the driving factor.  On that particular point, the rules have driven us over there longer than they have here.  Proportionality has actually been in your rules, but no one has actually taken an awful lot of notice of it.  I did a panel with Judge Peck yesterday and one of the first times I had seen the word proportionality over here was in one of his opinions (even though it has been in your rules for a long time).

We’re also more consistent when it comes to judge-led direction.  That is because active management is the job of the judge and they have taken it seriously over there.  We’re seeing an increasing number of judges over here take that role on themselves – still not many, but more than before.  Judge Grimm was the first to say “you’ll do it this way” or “why aren’t you doing it that way?” using whatever means within the rules to nudge people in the direction he thought was the right one.  But, it’s not enshrined in the same way here overall as it is with us.  Now, our judges may not appreciate spending most of their time as managers when they probably envisaged when they set up as barristers that they’d be doing trials and arguing elevated points of law.  Instead, many of them are dealing with the mechanics of pushing cases through the system.  I’m not sure they appreciate that.  But, done properly, when coupled with the idea that proportionality is the guiding principle, then you can see the opportunity for courts to say “don’t do this” or “why are you doing that?” and directing cases through the system effectively.

If you want a specific example of that happening in the US, I’ll refer to Judge Peck again in Da Silva Moore (covered by us here), which is famous for all sorts of other reasons.  In that case, you see him directing the parties to put documents aside that may or may not be needed (while still preserving them) because they were in France and would, Judge Peck knew, raise complications because of privacy and data protection restrictions.  I asked him yesterday if that was a spontaneous decision that he made or was it prompted by one of the parties asking.  And, of course, it was him self-starting because he could see the potential of time and money down the drain pursuing something that he knew (because he’s one of the few judges that actually understands EU data protection) that it could be fruitless.  Many judges would look at the rules and say “the rules say to produce it, so produce it”.  But, Judge Peck realizes that’s not a helpful approach, that time and money goes down the drain for the wrong reasons when you do that.  That’s a specific example of a judge rolling up his sleeves and seeing a clear way of saving time and costs.

Last fall, in the Schrems case, the Court of Justice of the European Union (‘CJEU’) ruled that the Safe Harbor pact enabling transatlantic data transfers between the U.S. and European Union should be struck down.  Do you think there will be a new, more effective agreement for transatlantic data transfers in place soon?

Today’s the day, in theory, that there is supposed to be a new method of doing things.  {Editor’s note: Indeed, as we announced here, a new framework was announced on that very day}  I don’t think, in discovery terms, which is the context we’re discussing here, that it matters anyway.  If anybody has been relying on Safe Harbor to bring discovery data to the US, they’re doing it wrong anyway.  If the only grounds for bringing over data was to say it’s Safe Harbor certified, then you’ve been doing it wrong.  And, a lot of people have been doing it wrong, using Safe Harbor to justify what was potentially an unlawful transaction.  I’ve been talking about Safe Harbor since 2008 or 2009, and people would laugh.  They would laugh at the idea that there were companies that wouldn’t follow the order of an American court.  But, privacy has been important over there for some time and it has even become much more important over here than it was just a few years ago.  The very same things that have raised attention in Europe have now raised attention in the US.  Edward Snowden raised attention here before the Schrems case came along.

What the Schrems decision may do is focus the eyes of corporations on the issue, so that when their lawyers – their good lawyers – say to them that there’s a problem here, they will understand that there is a problem.  There will be a few more lawyers who will realize that this is not a game for amateurs.  There have been plenty of amateur US lawyers when it comes to data protection, though some do understand it.  There is a way to do it and you can do it properly if you can articulate to the court your issues.  It’s a cultural issue.  Perhaps there is a history of facing US incursions that involve almost literally kicking the door down – “I have an order of an American court, give me your data.”  That perception has got to change and is changing.  The idea of being in Europe and understanding the culture of Europe is an important one.

That was one (but not the only) expressed motivation behind the acquisition of Huron Legal and Proven by Consilio – to take advantage of the cultural knowledge that each had in their respective markets.  And, there are plenty of other providers that are also doing it very well, involving the lawyers in each jurisdiction.  But, there are others who haven’t.  So, even before we see any new regulation or how the EU is going to react to Schrems, the culture has to change.  I’m not saying that I’m seeing it yet, but there will come a point where companies will want to be seen doing it properly, nobody will want to be seen as punished for breaking the rules.

What are you working on that you’d like our readers to know about?

As always, since 2007 anyway, I have been running the eDisclosure Information Project.  This is my tenth LegalTech.  It was called “eDisclosure” Information Project because I had no ambition to go beyond the UK when I started.  And, very quickly, I ran into lawyers who said that eDiscovery is something that Americans do and what an expensive mess they make of it.  It seemed to me that was an inadequate approach – just to dismiss somebody else’s approach to a major problem, as if it was simply the rules that were the problem instead of the existence of the data.  It was more involved than that and I wanted to explore that, and so the scope of my blog grew from there.

What the US has that we don’t is quite interesting – it’s a strong knowledge transfer from the body of judges who really understand this stuff.  You’re very lucky here in the US to have those judges and, of course, the technology that has been bred by the perceived fierceness of your rules is something the rest of us can benefit from even if we disdain the overall eDiscovery culture here.

So, to come back to your question: what is the mission?  The mission is firstly to promote the idea that the rules are not a bad thing to read.  RTFR is my motto, where the first “R” is “read” and the last “R” is “rules” and you can guess what the “F” stands for.  And, secondly, get out and see some of this technology.  I’m not necessarily promoting any particular one, but, if you don’t see the technology, how can you sit in your office and moan about “black boxes”?  So, the mission is two-fold: it’s rules and it’s look at the technology.

Thanks, Chris, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.