There are numerous examples. For instance, I have come across the attached piece published by the Education Forum. I reproduce it in full, typos and all!

A significant event marking the international relations of the 18th century was the 7-year war (1756-1763). The war established England’s position as the greatest colonial and naval power of the times and allowed Prussia, led by king Frederic the Great, to confirm its status as a great European military power. It is nonetheless common knowledge that despite the king’s energy and military prowess, there was a time when Prussia was on the point of giving in due to its enemies’ (Russia’s, more specifically) overwhelming superiority. In 1761, the new British cabinet, led by Bute, stopped the transfer of funds to the Prussians. Given the circumstances, Frederic the 2nd found himself no longer able of carrying on the war. He even gave serious thought to abdication. But then there came about what the king himself named “the miracle of the House of Branderburg”.

In January 1762 tsar Peter the 3rd, a great admirer of the Prussian king, followed his successor to the throne of Russia. He commanded that the Russian army put an end to all operations against the Prussian army, which situation provided Frederic the Great with an outlet to his predicament. This remains an incredible happening in the course of history, its consequences reaching far deeper than would appear at first sight. Hence, it is known that Germany was unified around the kingdom of Prussia. Had Prussia been defeated, it would not have played such an important part in the history of both Germany and Europe. If this were the case, how would it have become possible for Germany to be unified? Would the two World Wars still have taken place? These are amazing questions, emphasizing the beauty of history. Such questions can be made use of during classes, as brainstorming or debate themes for students.

As I grow older I find I am increasingly attracted to a consideration of our history and how it relates to the present day. Of course you need to have an understanding of some of the major events along the way otherwise you do not stand a chance of associating them with modern events or places you visit. If you did not know that King Philip of Spain had watched his Grand Armada set sail for England in 1588 from the height afforded by the Torre de Hercules, a lighthouse on the Spanish mainland near Coruna in Galicia in north western Spain, a visit to the present day light house would be fairly disappointing.

The War of Jenkins’ Ear has always been a source of amusement. Who was Jenkins, I wondered, and why was his ear so desirable? The wonders of the internet reveal, as my history masters did not, that a British captain Robert Jenkins, is said to have exhibited his ear to Parliament after it had been severed in a skirmish during which his merchant ship, Rebecca, was boarded by coastguards off the Spanish coast in 1731. Clearly Parliament thought that the severing of the captain’s ear, along with other indignities suffered at the hands of the Spanish was sufficient justification to declare war on the Spanish Empire, although they took until 1739 to do so.

The Coalition Government is looking for cuts but doubtless the provision of a severed ear to today’s MPs would invoke a different result today! I hear calls for Health and Safety inspections and a commission of inquiry.

Matters of chance are the stuff of history.

It so happens that I was at Boscobel House in Shropshire last week on the 350th anniversary of the Restoration of King Charles II. One of the best known stories of the Commonwealth years following the execution of King Charles I in 1649 is the extraordinary escape of the young Prince Charles (later King Charles II) following his ill starred attempt to recover the throne of his murdered father and his defeat at the hands of Oliver Cromwell’s Ironsides at the Battle of Worcester in 1651.

Anyone with an eye for history will have noticed the profusion of pubs in this country with the name The Royal Oak. After fleeing from Worcester Charles travelled approximately 650 miles by a circuitous route to avoid the searching Roundheads and arrive at the south coast and take a ship to safety in France. Early in his travels he came to Boscobel House in Brewood Forest on the borders of Shropshire and Staffordshire. Living and working on the estate of local landowners Charles Giffard were five brothers. George, William, Richard, Humphrey and John Penderel (Pendrell or Pendrill, there are many spellings) were royalists and Catholics and they, more than anyone else, ensured that the instantly recognisable, swarthy, tall Charles (he was well over 6 feet tall at a time when most men were considerably shorter) escaped the clutches of his pursuers and others who were tempted by the £1000 offered for his arrest. Charles spent an uncomfortable night and the best part of a day in the branches of an oak tree near Boscobel House while Cromwell’s forces were searching the woods round about before it was safe for him to be led to safety and on his way out of his kingdom. **

What a magnificent chance that he found the brothers, that they were loyal and that the means of his concealment were so readily to hand. The troops ransacked Boscobel House and uncovered its priest hole so it was just as well Charles had not been concealed there. Without this act, and the help of many others along the route, Charles would certainly have been caught and executed and our history would have been very different

There is, of course, a difference between leaving it to chance and chance itself. The latter you can do nothing about. Indeed it is self evident that if you could do something about it, it probably would not be chance.

Leaving it to chance is decidedly more risky and might be regarded in many areas of life to be unwise. The young Prince Charles had no choice in the end but to allow himself to be spirited around the country by allies and to hope and trust that they did not get it wrong. Had he been able to plan matters better, he might not have found himself in his predicament.

Lawyers are in a better position. While the volume of electronic data they have to deal with is increasing as are the sources of the material (Blackberries, PDAs etc), the technology is getting better at sorting it all out, collating the data and filtering it and making it available for review. I am not suggesting that because there is more data and the technology is now cheaper, quicker and more powerful that there is some kind of virtuous circle emerging. After all, if that were the case lawyers would be in danger of being out of a job!

But the legal input into e-discovery is vital. Do lawyers think that e-discovery is not for them? If so, I fear they are making a big mistake that, in the end, will cost them clients, work and ultimately status. I well remember the days of paper discovery (and it was called discovery then!) and how adept lawyers came to be at sorting out the mountains of paper and extracting the vital sheets. I recall teams of paralegals with heaps of photocopied paper spending hours/days just to put the paper in some form of chronological order before the lawyers could start their review.

What has changed is that the input from lawyers is now vitally required at an earlier stage in the proceedings. Decisions need to be made earlier because decisions made early on about how a particular data set shall be processed will have a knock on effect later on in the process. It is not safe for lawyers to assume that this process can safely be left to others. The attitude that it is only e-disclosure and I don’t need to get involved at this stage does not wash any more. It really is leaving it to chance to adopt that approach. Worse still is the attitude which says that I am too senior to do this and someone else can take the pain!

This is all wrong. Lawyers do not need to be techies. It is quite in order not to be. But at least they should have the sense to seek to understand what is involved in the process and then partner with an expert so that they are not taken by surprise. Lawyers would not dream of letting their client go to trial without a medical expert in a personal injury matter or an appropriate technical expert in a case in the TCC or even without Counsel in certain cases and yet do not take e-disclosure seriously enough to warrant consulting an expert in the field.

Lord Justice Jackson urged that lawyers and the judiciary should receive more training in e-disclosure. There are plenty of courses about the law but what is really needed is courses on what the technology can do and how this may be of benefit to the lawyers. In this way lawyers will be better able to explain to their clients why they should spend money on e-disclosure and what may be the result if they do not. It is all about the planning and not leaving it to chance.

If Charles had been able to plan things he would not have been stuck in an oak tree on a pouring wet day while people out to capture and execute him were hunting in the woods below. If Jenkins had not lost an ear in a skirmish off the Spanish coast would there have been the subsequent war? If Germany had not been united around Prussia would there have been either of the World Wars?

Leaving matters to chance is a chancy way to operate!

** If you have read this far, you may be interested to know that I am descended from John Pendrill through my mother’s family. As I result, I hope I am permitted to indulge in a little bit of personal family reminiscence!!

1. Britain’s forthcoming defence review.
2. Jackie Fisher, First Sea Lord at the end of the 19th Century.
3. John Terry, Chelsea and England footballer.
4. Publius Flavius Vegetius Renatus.
5. The Royal Navy.

Answers on a postcard please!  

No, not really. Inappropriate in this electronic age and there is no prize for this one anyway.

Last Sunday evening, I was happily clutching an alcoholic restorative in a comfortable chair by a roaring log fire, when my attention was drawn to background commentary on the TV about HMS Dreadnought.

The voice was Dan Snow’s, (son of Peter of the Swingometer arms beloved of election night audiences) the presenter of a BBC TV series about Britain’s naval past entitled “Empire of the Seas”. HMS Dreadnought was the ultimate fighting ship of its time. Built in HM Dockyard, Portsmouth in under a year and launched in 1906, it effectively rendered all other ships obsolete. The trouble was that this obsolescence extended to the ships of His Britannic Majesty’s navy too and encouraged the first real arms race as other naval powers such as France and aspiring powers such as Germany invested in their ship building skills in an effort to produce an answer to Dreadnought. At the time it was a magnificent fighting ship and if you were a sailor in Dreadnought you really did fear nothing. The guns had a huge range larger than any other ship afloat and the iron clad hull effectively meant that the ship was immune from penetration by any known enemy projectile.

Some of you will recognise this approach to litigation. You know what I mean! Marshal massive forces on one side and blow the opposition out of the water with everything at your disposal before the enemy has a chance to respond. The trouble with that approach is that it is often ineffective today. I remember the days when a well fed corporate lawyer would seek to reassure his client with the words, “Don’t worry, I will get one of our litigation chaps to issue a writ right away”, the implication being that by bringing all their firepower to bear immediately you would blow the opposition away.

It is odd to realise now that in those days that was allowed! I am not talking about injunctions and applications for other urgent orders such as Anton Piller (search and seize) but about any ordinary claim where the issue of a writ was thought to be the initial negotiating tactic or possibly the only weapon in the armoury. Nowadays, we have the concept of proportionality introduced by the Woolf reforms of the late 1990s and the various protocols to be followed before a claim form (a writ sounds so much more intimidating) can be issued.

Si vis pacem, para bellum. If you want peace, prepare for war! These words are attributed to the works of the Roman military writer Publius Flavius Vegetius Renatus. Writing in the 4th century AD he was responsible for a sizeable treatise on Roman warfare. Whether he wrote these words or not, they have been adopted and adapted by many others over the ages.

I understand the words are the motto of the Royal Navy today!

However, you translate them, the sense of the words is clear. You may not agree with the sentiment but there is force in the suggestion that in order to have peace you have to be able to prosecute war. You may not want to, but if you are incapable of doing so, it will not be long before someone seeks to take advantage of your perceived weakness and you have war not peace.

Dreadnought came and went in a matter of a few years. Just as the Admiralty and its designers strove to achieve superiority, so litigators strive to overcome their opponents but the emphasis is now on the importance of skilful preparation rather than reliance on mere superiority in numbers. In these days of proportionality it simply is not good enough to seek to overwhelm the opposition by deluging them with paper or ESI without taking effective steps to reduce the amount involved. If you do not do so, your opponents will almost certainly complain and raise the judgement in Earles v Barclays Bank PLC given by Judge Brown in October last year.

I have written before [Readiness is next to godliness, 16 Febreuary, 2010] about the importance of litigation readiness as part of a robust strategy for litigation and it seems to me that the more lawyers talk to their clients in times of peace, the better prepared they will be to deal with war when it arrives. Anyway, just think of the opportunities to build relationships with your clients in the process! Truly, if you want peace, prepare for war!

Last Sunday was a day for thoughtful reflection in other ways too. Hard on my poached eggs on toast (delicious with marmite too) I came across an altogether less palatable subject in my Sunday Times. Michael Smith had written a full page article on the forthcoming defence review under the title: “The shape of wars to come”.

Difficult decisions will have to be made about reshaping our armed forces with limited funds whichever Government we elect in the spring. The arguments are ranged all along the spectrum from the defeatist (let’s reduce them all to one service) to the alarmist via the pragmatic but as one former Admiral put it: “Peace doesn’t keep itself…..history shows that. We need forces that defeat and deter threats to the UK and protect our interests around the world. If you forget that, you are not going to be any sort of power. You become Belgium”.

Unkind to Belgium perhaps but his meaning is clear. If you wish for peace, prepare for war.

If you have stayed with me this long you may be wondering what John Terry has got to do with all this. I do not consider him to be an expert in this field of e-disclosure although I am prepared to concede he may be or perhaps there is a litigation support manager out there somewhere, whom I have not met, called John Terry! However, you will know the one I am talking about and I am sure you do not need me to intrude on private grief given the revelations of the past few weeks. However, John Terry featured in an article by Alastair Brett, Legal Manager of Times Newspapers, far removed from the sports pages of the same Sunday Times dated Feb 7th.

Beside being drawn by the arresting title – John Terry, the accidental poster boy for press freedom – I decided to read the article because I used to know Alastair at university and although I have lost touch with him I always read his articles as a way of making me believe that I am still in contact with him. His article carried a picture of JT with a pained expression on his face (hardly surprising) and a subtitle which “hails the ruling that leaves liars and cheats exposed” as JT’s so called Super injunction was lifted and his identity was revealed.

Alastair is clearly no lover of the super injunction and I wholeheartedly agree with him. His point, however, was that we are in danger of sleepwalking into the nightmare of a judge made privacy law which only serves to “protect the immoral but legal behaviour of the rich and famous, or which enables philanderers not only to gag a free press but also to claim damages for cheating and lying to their wives and fans”.

Strong words indeed. He went on through a whole range of recent stories from Avram Grant’s visits to a massage parlour in Portsmouth, through Max Mosley’s successful action against the News of the World for invasion of privacy after his predilection for S & M was revealed, to the Sunday Sport journalist who, in 1990, gained access to the hospital room of ‘Allo! ‘Allo! actor Gordon Kaye where he was lying gravely injured following an accident.

His object was to suggest that privacy law in this country is a mess and to propose a solution but whatever the solution it seems to me that the participants would do well to assume you are going to be found out and to take steps to prepare for when it happens. If you want peace, prepare for war! You may not succeed but you will be embroiled in an unpleasant spat if you make no effective preparations.

Something to talk to your clients about, perhaps, before they become involved in their own wars?

According to the Kroll Ontrack news release, ESI management is top of mind for corporations but effective implementation is falling.

This year’s survey also reveals 77% of US companies and 56% of U.K. companies believe their ESI discovery policy or strategy is repeatable and defensible. However, only 57% of US and 39% of UK corporations have a mechanism to preserve potentially relevant data when litigation or a regulatory investigation is anticipated.

“Without an identified means to suspend the expulsion of potentially responsive data, many companies are not positioned to execute proper preservation protocol or claim their ESI discovery readiness policy is effective,” says the report.

Now why does this matter? At this point, many people will curl up and want to go home but please bear with me because the whole concept of litigation readiness is hugely important to clients and lawyers alike. To be simplistic, if a company finds itself faced with a regulatory investigation or a claim for damages and is unable to find the relevant documents to support or rebut the issues facing it, the company’s lawyers are likely to face an uphill struggle.

Litigation readiness is a wide subject but one which is becoming increasingly vital for the future wellbeing of corporates faced with litigation and/or regulatory problems.

I am convinced that it is a subject to which I will have to return again and again in the context of electronic documents. For present purposes, however, I will confine my remarks to some of the basic points to bear in mind. In no particular order, you may wish to consider:

• The need to advise clients to have a clear document retention and destruction policy.
• The need to ensure it is followed.
• It is vital to ensure documents are not automatically destroyed eg when an employee leaves. Equally, it is vital to retrieve laptops, PDAs etc when an employee leaves.
• Document management is key to the ability to fight litigation
• Importantly, ensure any litigation hold is effective. There are different rules in the US from England and Wales. For example, there is a tension between Data Protection Act obligations and disclosure requirements, particularly in relation to requests from the US.
• Contemporaneous documents are vital when witnesses cannot recall. The recent case of Earles v Barclays Bank PLC is on the point. It is a decision of His Honour Judge Simon Brown QC, sitting as an Additional High Court Judge in the Mercantile Court in Birmingham and is dated 8th October 2009. The judge is a noted proponent of e-disclosure in appropriate circumstances. (see ‘Watch out! Costs about!’, 29th October)
• While there is no duty on a client to preserve documents prior to proceedings (and it is difficult to persuade the court to draw adverse inferences from their loss or destruction in such circumstances), the position is very different once proceedings start or litigation is contemplated. Adverse inferences may well be drawn if the documents are not available, although in this country there are no punitive damages as in the US although the court may penalise in costs or strike out a pleading.
• Consider privilege.
• Limitation. How long do I keep my records? See retention and destruction policy above.
• Parties must now think more widely than just about disclosure of emails and must search media other than merely PCs.
• They should be transparent about key word searches.
• Consider whether you should disclose metadata.
• Agree how the e-documents are to be produced for inspection
• Consider how best to reduce cost of e-disclosure.

Best practice may include:

• Use of technology can help with document management and document retention.
• Use of technology to reduce volume of e-docs held.
• Have a disclosure plan in readiness.
• Consult with other parties on the scope of disclosure.
• When appropriate, use technology to identify relevant documents and minimise review time.
• Use technology to review and analyse the documents.

By thinking about these issues and applying the simple ideas above, the cost of disclosure can be reduced as can the time spent on review.

However, systems must be in place before the litigation starts to ensure that costs are saved. It is more difficult to retrieve the situation once the proceedings are under way, threatened or contemplated.

The terms of reference are:

To review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to

• the cost of litigation to parties and to the public purse;
• the role of mediation and other methods of dispute resolution in relation to court process;
• the development of modern methods of communication and case management; and
• the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts;

and to report within 2 years, making recommendations for changes with a view to improving access to civil justice in Scotland, promoting early resolution of disputes, making the best use of resources, and ensuring that cases are dealt with in ways which are proportionate to the value, importance and complexity of the issues raised.

Turning to the sections on technology I found that in Chapter 2 at paragraph 22, there is the following:

Information Technology
22. Respondents were strongly of the view that the court system is currently not taking full advantage of the opportunities that information technology offers to improve the efficiency of the conduct and management of civil business. Significant improvements to efficiency could be achieved by transmitting documents to court electronically; communicating with the court by email; creating electronic processes or case files; using telephone or videoconferencing facilities; processing certain types of claim on line; recording evidence digitally; and providing information and guidance for the public and the legal profession online.

Nothing particularly controversial there.

The report then devotes Chapter 6 to a consideration of Information Technology and makes a number of recommendations at paragraph 84.

I have only been able to skim through the report’s recommendations which are:

84. Generally, we would encourage the increased use of IT to support the work of the civil courts in Scotland. In particular we recommend that:

•  The SCS should develop an up to date strategy for enhanced provision of IT based on research commissioned to identify the needs of all court users;
•  The SCS website should be a source of guidance and support particularly for parties in cases covered by the proposed simplified procedures falling within the jurisdiction of the district judge. It should include information on
  o Other sources of advice and assistance;
  o Providers of mediation and other forms of ADR including links as appropriate; and
  o Self help materials;
•  The use of email as a means of communicating with the courts and the judiciary should be encouraged;
•  The proposed pilot of an online small claims and summary cause system should be actively pursued as soon as is practicable and consideration should be given to extending the system to other undefended actions;
• Video and telephone conferencing should be encouraged;
• Consideration should be given to means of encouraging court users to communicate electronically. This may involve entering into some sort of agreement with a provider to allow access to systems locally; managing the provision of such access directly, for example with local authorities; or by lower court fees; and
• All evidence in civil cases, apart from those under the simplified procedure, should be recorded digitally. 

There appears to be no reference to the use of e-disclosure tools to assist lawyers to review and analyse copious amounts of data and documents along the lines of the everyday discussions in this blog and elsewhere.

For that we must contain our impatience and await publication of the Final Report by Lord Justice Jackson, likely to be early in 2010.

There are, of course, obvious differences between the way of life I was used to in the UK and in Continental Europe and what lies below the Panama Canal. In particular I remember the disparity between what you leave behind at Miami airport and the reality of life in the outskirts of Caracas as you drive up the canyon from the airport to the city centre.

However, this is not meant to be a social commentary, you will be relieved to know. No, my point is a simple one. My purpose is to highlight certain developments during my practicing life which I strongly suspect have not been for the best.

I was always struck by the court buildings in places like Lima or Buenos Aires and the grandiose lettering above the doors often quoting some worthy sentiment or saying about the law below the hotel like name  “Palacio de la Justicia.”

There are and were countries in South America (as in other places around the world) where the mere mention of justice was sufficient to cause a smug lawyer from Western Europe to break into a wry smile while walking past or driving by with the taxi driver pointing out the sights.

I was certain in my own mind that if we ever had anything so vulgar as a Palace of Justice or even a Minister of Justice in the UK, I would not want to continue with the law. Far too Orwellian for me! What is wrong with “The Law Courts”?

Well, I am pleased to say I made it! I stopped active practice before the present Lord Chancellor became our Minister of Justice. Even he and his predecessor, Tony’s Crony, Lord Falconer of the Dome, balked at the idea of calling the building in Parliament Square which houses the Supreme Court, the Palace of Justice!! Having said that, I note that there are quotations from the likes of Cicero, Aristotle and Plato carved into the ceiling and benches!

This mania for changing the name of something is in tune with the current time. After all, the well understood concept of discovery in litigation has become the less well known and more difficult concept of disclosure. I am not sure it is an improvement.

And while on the subject of improvement (sic), another statistic caught my eye recently. I had always heard that when Britain had an empire which covered the best part of a quarter of the globe, there were just a few hundred staff in Whitehall responsible for administering this huge area. Now I learn from the musings of Sir Thomas Legg QC (he of the MPs’ expenses fame) that when he joined the Lord Chancellor’s Department in 1962, there were just 12 lawyers employed. When he retired in 1998, the department had 20,000 staff and a budget of £2 billion!

I know litigation is expensive but this is crazy. Does anyone believe that either the number of staff or the budget have declined in the last 11 years? Is this an improvement? I am sure someone will argue that it is — ?

Apparently, this involves wearing some form of camera round your neck on a permanent basis which takes a photograph every 20 seconds and builds into a complete record of everything you do. Graham Bell and Jim Gemmill are conducting an experiment and have so far amassed over 300 gigabytes of material.

I could not help wondering why on earth anyone would want a complete record of what they had done!  I also thought I would rather be responsible for processing 300 gb of electronic data for a law firm client than seeing what I had had for Sunday breakfast at 20 second intervals!

The part of the programme I heard did not give a clue as to the reason for the research other than to suggest it was to see if it could be done and what it might look like.

Scary, huh?!

Currently there are a large number of reports from a variety of sources that the end of the recession is here and that the good times are set to roll again. 

The Stock Market has surged above 5000, house prices appear to have risen or at least stopped falling and there are tentative reports that law firms have been through the worst (and it was pretty awful according to some reports) and that recruitment just might be in the up again.

I am sceptical. I can accept that everyone would like the Stock Market to rise, restoring some of the damage done to pensions over the last 18 months and that we all like to think we are living in an appreciating asset. 

What I cannot accept, however, is that the recession is anywhere near over while unemployment continues its relentless upward surge. I think that those who are calling the end of recession have got it wrong and that we will not see a real end to the bad times until people feel that their jobs are secure. I have commented previously about the apparent rise in the number of litigation related instructions during the last month but if we are realistic I think clients are still keen to put off decisions about litigation if they can and if they cannot they continue to be wary about committing large amounts of time and resource to the process. 

Phrases like pre-trial review and early case assessment have been around for years but technology is moving at a blistering pace and what took many months and hundreds of thousands of pounds to process and review now takes a matter of days and a few thousand pounds to achieve. The process is now so quick that there is no need to sort out what the client may have before sending it for processing. The cost of processing is now so much lower than only a year ago that lawyers would be well advised to throw everything into the pot so that they know they have looked at everything before advising their clients. Within hours or at any rate days they will be able to advise their clients on their position safe in the knowledge that they will have considered all the documents and weeded out those which are irrelevant at that early stage. 

As for the upsurge in litigation in the City of London or indeed elsewhere, there are some optimistic voices but, in my view, “it is too early to say!”

Hemp claims that the sheer volume of information to be assimilated threatens our decision making and our ability to innovate, and perhaps he is right as I am commenting on what I have read rather than being innovative! 

Apparently in one study people took 25 minutes to return to work after being interrupted by an incoming email!! Fortunately, we need not take this too seriously to heart because, guess what, there is technology on hand to assist with the problem! 

By a combination of clever software which seeks to limit and prioritise the emails you receive, and taking control of your “addiction coupled with a change of culture in the workplace” you can help to cure the malady. 

Sensible and appropriate use of technology to assist in unravelling the issues in a case as early as possible makes sense for litigators faced with ever increasing amounts of data from clients and third parties. Use of the technology must always be proportionate (and that is another issue) but failure to use it in appropriate cases is likely to lead to information overload. 

Disproportionate perhaps!  Just like the reaction of an overworked associate who has just received another email interruption?

The pictures at the top of the article showing a grim faced Dick Fuld, former Chief Executive, and one of the workers who lost her job that fateful day almost one year ago brought home what a momentous event the collapse of such a major investment bank actually was. The banks in the UK were deemed to be too big to fail and have been bailed out with huge amounts of taxpayers’ money but Lehman Brothers went under owing an eye watering $613 billion.

The thrust of the Sunday Times article was the bill to be incurred for sorting out the claims arising as a result of the bank’s collapse. Apparently, advisers liquidating its remains have already billed $500 million. It is said that Enron cost $725 million to unravel, currently the world record!

This figure is likely to be dwarfed if Tony Lomas is to be believed. He is the PwC partner   leading the UK liquidation and he has said that the costs could exceed a massive $4 billion once litigation costs are included.

The article reports that there are at present some 76 actions going on in courts around the world from Luxembourg to Germany to Japan with more to come as claims are notified, the deadline for which is in 3 weeks’ time, some 53 weeks after the bank filed for bankruptcy.

All these figures made me wonder how much was being spent on processing the paper and electronic documents involved. I would hazard a guess that it will be more than a drop in the ocean as lawyers and other advisers struggle to get to grips with the complexities of the arcane trading in which the traders at Lehman excelled in the good times.

For any advisers reading this, may I offer a few thoughts on how their job might be simplified? Unsurprisingly (since this blog is about Smart e-Discovery) I return to a favourite theme of mine -  the imperative to reduce the costs of discovery, as noted by the judge in the recent Multiplex/Cleveland Bridge judgement and referred to elsewhere in this blog [see: The Road from Wembley]

A few tens of thousands saved here and there on discovery costs, even if seemingly a small proportion of the billions involved overall, can have significant impact particularly if the cost of the advisers themselves can be reduced as fewer people need less time to understand the issues and litigate them.

I shan’t recite the Millnet mantra here but if you are curious about the scope for cost reduction in the e-Discovery process, take a look at our Introduction to Smart e-Discovery Services [PDF - 531KB]

He goes on to say that “the audience we want is those who are not converted…”

I agree wholeheartedly.

In travels around the country visiting firms of varying sizes who are not always in the headlines, I find that there is great interest in the “technology” of electronic disclosure, but a concern and indeed an irritation with all the hype and the apparently impenetrable fog which surrounds the industry.

If the smart e-discovey blog is to achieve anything it needs to do more than preach to the converted. It needs to provide interesting and topical comments on the e-Discovery world as we see it, which will amuse, entertain and possibly also inform its readers wherever they are in the technology spectrum.

If it only attracts “the converted”, it will have failed!