Your single source for new lessons on legal technology, e-discovery, and the people innovating behind the scenes.

Proportionality, Paranoia, & the UK's Biggest e-Disclosure Challenges

Paul Gordon

This year, we’re taking the Relativity spring release on the road. Over two weeks, we’ll connect with local e-discovery professionals in four major cities on the Relativity Spring Launch Roadshow, starting tomorrow in London.

Ahead of our first stop, we sat down with Chris Dale—founder and author of the eDisclosure Information Project. As a former practicing lawyer and e-disclosure consultant, Chris is an expert in all things e-discovery and a trusted voice in our industry. Check out his insight into what makes the UK’s flavor of e-discovery different from the rest of the world.

Paul: What are some differences between e-disclosure in the UK and other parts of the world?

Chris: In comparison with the U.S., we have much fewer documents in our cases. For reasons I don’t wholly understand, we seem to produce fewer documents per capita than Americans. In a case where we have the same number of custodians over the same period of time, we’ll produce fewer documents. Don’t ask me why.

More importantly, however, English lawyers are required to argue for the narrowest scope possible. What’s the smallest number of documents needed for justice to be done? How narrow can you make it and still have a proper case? Answering those questions is part of their duty to the court and to their client.

Chris Dale

What is the biggest e-disclosure challenge that companies in the UK face today?

Budgets. Since April 2012, there’s been a much closer focus on the e-disclosure duties of those participating in litigation—and not just very big litigation, but also mid-size litigation. English lawyers are required to do three things. First, as I mentioned, they must argue for the smallest scope possible.

Second, they need to determine the best method for accomplishing the objective. It might be using the client’s Relativity instance; it might be choosing a law firm that has a good breadth of technology at its finger tips; or, it might be outsourcing the whole task to someone else. Regardless, the lawyers must be equipped to argue for a method, or for a choice of methods, of achieving their disclosure obligations proportionately.

The last and perhaps most difficult component is defining the budget. English lawyers must provide a budget for the costs of the litigation up front, and they are held to that budget unless something changes and warrants a variation to the budget. That’s challenging, particularly when it comes at such an early stage that it is hard to tell what the true scope of disclosure is going to be. Lawyers often find this difficult and expensive, and judges just aren’t used to it. I’m not saying it’s the wrong approach in principle, but the formal requirements pose a big challenge.

Have you noticed organizations adapting to meet the budget challenge?

More and more law firms are realizing they have to get a handle on it. There are plenty of good firms who are on top of it—mainly, but not exclusively, the bigger firms—but, on the whole, it takes a long time to adapt to rule changes. For example, in 1999, we ditched the very broad concept of relevance, yet there are some who believe it is still the test 16 years later.

Why do you think the industry is slow to adapt?

The changes haven’t been sufficiently judge-led. There aren’t enough judges who bang the table and ask, “Is that really the best way of doing it? Have you thought about doing it this way?” Because judges aren’t asking, people are getting away with what is, effectively, not strict compliance with the rules. As long as they can do that, they will do that.

It’s worth adding there are plenty of cases where, in fact, that’s probably the best way to deliver justice. You won’t find me arguing that everybody ought to be treating every case as a heavy e-disclosure case when the facts and the size and the way the documents exist don’t support that. However, as more and more electronic documents are created, there’s insufficient knowledge among many lawyers about how much money can be saved and the different methods for dealing with the problems. It will take time to shift.

What do you think will cause this shift?

I think we’ll start seeing some judgments that criticize lawyers and force them to pay the costs themselves for not approaching the case properly. We haven’t had many of those yet.

Sooner or later, we’ll also start seeing negligence claims against law firms in instances where they lost due to ignorance. For example, if you don’t know that there is such a thing as technology-assisted review, then it’s strongly arguable that you’re negligent vis-à-vis your client and in breach of your professional duty to the court.

It’s not until either the court or the insurers or the clients start being well-informed enough to say “Why are you doing that?” that the status quo will change—and that’s something I think we’ll begin to see.

What lessons do you think the U.S.—or any other country—could learn from the UK’s e-disclosure practices?

The UK tends to be a more open place for new approaches to procedural matters, in some courts at least. Americans are absolutely fixed with finding that some judge somewhere did something or said something they can use as approval. We, on the other hand, don’t give a hoot what some other court decided yesterday—the judge decides what is right for the case he is dealing with in the moment.

Because of this, English lawyers can put forth any suggestion which is supported by the rules, as long as they articulate reasoning for the scope of disclosure, their proposed method, and the costs. It doesn’t mean the court will find for you, as the facts of every case are different, but it is bound to listen to your suggestions for achieving the objective in a better, more proportionate way.

In both countries, there are a lot of lawyers who are happy turning pages—they simply don’t know better; they are entirely ignorant of what technology exists to make their jobs easier and faster. We perhaps have a higher proportion of them in the UK, but I wouldn’t want to be heard suggesting that Americans—as either judges or lawyers—have absolutely been on top of technology, because that isn’t so.

What about vice versa—what can the UK learn from other countries’ practices?

We look to the U.S. for technology. There’s a largely unwarranted paranoia that exists in the U.S. about the fear of sanctions, and I think that fear has led to the development of very good software. We, in the UK, are the beneficiaries of that. If the software is good enough for the FRCP, it’s good enough for us.

Additionally, the U.S. has a much more developed set of forums for discussion. There are always thoughtful people who are willing to kick around ideas in public places—there’s a lot of intelligent thought going on about how to tackle a problem. Progress may not get made at every event, but you come away from a lot of them feeling the world has moved forward a bit.

Well, there’s one upcoming event to attend in London. What are you most looking forward to seeing at the Relativity Spring Launch Roadshow?

It’s always good to hear Andrew Sieja talk—that sort of mixture of seriousness and enthusiasm he brings, backed by the fact that there’s always a run of developments in Relativity that are worth hearing about. We all read far too many words relating to our jobs, so it’s good every so often to hear somebody enthusiastically speaking instead. Andrew does that very well.

This interview was edited by Chris Dale on April 20, 2015. Paul Gordon is a member of kCura’s advice team, specialized in serving the UK user community. He has more than a decade of experience in legal technology.

 


The latest insights, trends, and spotlights — directly to your inbox.

The Relativity Blog covers the latest in legal tech and compliance, professional development topics, and spotlights on the many bright minds in our space. Subscribe today to learn something new, stay ahead of emerging tech, and up-level your career.

Interested in being one of our authors? Learn more about how to contribute to The Relativity Blog.