The Aha moment

In which Kanga and baby Roo come to the forest, and Piglet has a bath

In an effort to avoid the increasingly tiresome subject of super injunctions leading to a spat between the judiciary in the stern figure of the Lord Chief Justice no less and that well known tribune of the people in the slightly less forbidding figure of John Hemming (Lib Dem Member of Parliament for Birmingham Yardley), I found solace in a busy few days for news of a less elevated kind.

I have never hidden my dislike of the so called super injunction. In my old fashioned way, just as justice delayed is often justice denied, I have always believed that it is all but impossible to do justice on the basis of a secret, one-sided hearing based on affidavit as opposed to oral evidence. Injunctions are sometimes necessary to ensure that one party is not put at so much of a disadvantage in a dispute that no amount of damages can ever put right the hurt caused by the other. Sometimes, the only way is to stop something from happening in an attempt to preserve the status quo while the court has time to hear the parties and decide on their dispute.

But the very idea that such an injunction cannot even be mentioned and even that its very existence should not be known always struck me as perverse, to say the least. Anyway, it rather looks as if the super injunction has had its day and has turned out not to be so super for the people involved after all.

Not for me the machinations of the press and the 75,000 members of the Twitterati who cannot leave a certain footballer alone — you might think you know who it is but I could not possibly comment — nor the tortuous twists and turns of the Sunday Herald in Scotland determined to “out” the footballer and apparently printing a picture of him with his eyes blacked out. I thought The Times cartoon of the Queen at Buckingham Palace peering round a pillar at the Obamas with her eyes blotted out and saying “Guess who?” was far funnier.

No, I opted for a different “AHA Moment!”

I must confess that I had never imagined that I would find comfort in reports that the Church was to become involved in the next wave of rolling out the superfast broadband that we country dwellers can only dream about, nor that I would be excited by the prospect of petabytes or a dispute across the world involving racing car tyres.

But such is the world we now live in. How different from the world of A A Milne and Winnie the Pooh. The story of the arrival of Kanga and Roo in the Hundred Acre Wood is one of my favourites, not because it is the only occasion in the Pooh books where the animals gang up together to try and persuade two of their number to leave but because of the unexpected twist of Piglet ending up in Kanga’s pocket and having to survive the indignities of a bath (for a pig?), Roo’s medicine and not being recognised by Christopher Robin because “I know Piglet well and he is quite a different colour.” Poor Piglet, always on the wrong end of or the butt of the joke.

I bet Imogen Thomas knows how he felt.

The “AHA moment” is all part of Rabbit’s plan to kidnap Roo. When Kanga asks where he is the others are all to say “AHA!” signifying that they know where Roo is but that they will only reveal his whereabouts to Kanga if she agrees to take Roo and leave the Forest.

Unfortunately, the Bear of Little Brain does not really get it. As the story has it:

“Aha!” said Pooh, practising. “Aha! Aha!…Of course,” he went on, “we could say ‘Aha!’ even if we hadn’t stolen Baby Roo.”

“Pooh,” said Rabbit kindly, “you haven’t any brain.”

“I know,” said Pooh humbly.

So what are the “Aha” moments this week?

The first concerns the purchase by Autonomy of Iron Mountain’s e-discovery business for $350 million in cash with a view to more cloud based data archiving services. Apparently we are talking petabytes here which for those of you who cannot remember amounts to 1,000,000,000,000,000 Bytes in each petabyte.

“Aha” I hear you say! Some pretty big clouds there then.

And then what about the news that Clearwell, the e-discovery services provider, has been acquired by Symantec for $390 million? According to Gartner the e-discovery market is growing at over 14% per year so may be Symantec is on to something. Whatever it is, we are talking big numbers here.

Even the Church is getting involved with the news that agreement has been reached between certain diocesan authorities to allow a company specialising in the installation of equipment to boost broadband speeds without the need to upgrade the cabling involved, to use church towers “to beam the internet at superfast broadband speeds” to surrounding houses in the area of the church in return for a slice of the revenue generated.

And last but not least there is a report from the US of a huge award of costs against plaintiffs (as they still call them) [Antitrust Plaintiffs Ordered to Pay E-Discovery Costs, Legal Technology Today, 17th May, 2011] referring to the case Race Tires America Inc. v Hoosier Racing Tire Corp.

Judge Terrence F McVerry of the US District Court for the Western District of Pennsylvania found that courts are increasingly approving awards of e-discovery costs noting that one judge had described them as the “21st century equivalent of making copies.”

The costs awarded were in excess of $367000 but that award appears to have been dwarfed by the award in a case in the State of Idaho where the court awarded $4.6 million for the costs incurred in creating a litigation database!

The article referenced above suggests that the award will send shivers down the spines of some plaintiffs’ lawyers. In this anti trust case the judge concluded that “the requirements and expertise necessary to retrieve and prepare these e-discovery documents for production were an indispensable part of the discovery process.”

Not so much an “Aha” moment perhaps but more of an “Uh Oh!” moment?

Pooh would not have understood it!

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About Charles Holloway

Charles Holloway is a lawyer and accredited mediator. Formerly a senior litigation partner with Eversheds LLP and Head of Litigation in the East of England, Charles has been a director of Millnet Ltd since 2006. His interest in electronic document management arises from his wide experience of document intensive cases and his prominent involvement in investigations in the public and private sectors, notably both the Bloody Sunday and Harold Shipman inquiries. [View Charles Holloway's profile on LinkedIn.]