Incidentally, why do we all still have to suffer bank holidays? Given to bank workers in the late 19^th century who did not have proper holidays, they are an outmoded concept where the state allows you to have a holiday on a given Monday when the weather is “guaranteed” to be poor and everyone else is on holiday so you cannot get anything done. Note to Coalition: Abolish bank holidays (except Christmas and Easter as these are religious festivals) and allow everyone an additional number of days of statutory holidays to be taken when we want and not just because it is ghastly Wilsonian May Day or August 31^st!

Politics aside (and I am not going to talk about Florence Rose Endellion or “Uncle” Nick, still less the effects of the June Budget or the forthcoming Spending Review) the next few months in the legal and technology world seem likely to be dominated by:

• Strong competition between law firms for juicy big ticket litigation.
• The introduction in October of the new Practice Direction 31B and the formal passing into the rules of the Electronic Documents Questionnaire.  (A commentary will appear shortly in the resources section opposite).
• Ongoing debate about LPOs.
• The emergence of the Third Party Litigation Funders as mainstream providers of funds for litigation (always assuming there are willing investors brave enough to provide the funds in the first place).
• Continuing downward pressure on law firm costs exerted by clients and general counsel. In turn this will lead to increased pressure on profit margins as much of the low hanging fruit has already been plucked by the managing partners and CEOs of firms keen to reduce costs as demonstrated by the recent reported profits surge across many of the larger firms. It will not be so easy next time round and the firms who succeed will be those which are prepared to offer fresh and innovative solutions to old problems.
• The increasing use of technology in Early Case Assessment, Document Review, Disclosure, etc
• Further rationalisation of the technology vendor market: economic pressures and the ability to keep up with the changes in technology will take their toll.

I predict that we will see all of the above soon even if the timescale I have suggested turns out to be more elastic.

We are all in for a bumpy ride. Squid and Cream anyone?

A recent report in The Times from Japan noted that an electrical engineer is out to change the culinary world as we know it. I cannot provide a link as that newspaper has decided to cut itself off from the reading public who are encouraged to pay for what was previously free and Google has therefore taken down the links! So that we can share the phenomenon, I can tell you that, armed with a gadget the size of a large marker pen, Professor Kiyoshi Toko of the University of Kynshu prepares combinations of food, for instance carefully mixing soy sauce with crème caramel to create the exact taste of sea urchin. It is all about electrical impulses sent to the brain by the taste receptors in the mouth when they come into contact with food and drink. The implications, according to Professor Toko, are huge. (Implications are always huge! Has anyone come across “tiny” implications)?

A prod with the gadget (a sort of sensor) which can replicate the minute electrical differentials as food hits taste buds could immediately establish provenance and quality. No pun intended, but in essence, the good Professor is trying to make taste objective. And squid and cream? Apparently it tastes like strawberry shortcake!

The point of all this is our old friend innovation coupled with a dash of experimentation on the side. Sadly it does not always work out as I am sure the guinea pigs at Kynshu University will readily testify. Some things just do not change for the better. I was sad to learn that the ancient post of Judge Advocate General of the Fleet had been abolished as long ago as 2004. Established in 1663, the post was held by a civilian judge responsible for the supervision of the Royal Navy’s court martial system. The 28^th and last holder was Commander His Honour Judge John Sessions who died in June this year and the duties he discharged have now been subsumed into those of the Judge Advocate General who deals with the Army and the RAF as well no doubt with a phalanx of officials at the MOD. I have bemoaned the passing of the Lord Chancellor’s Department and the arrival of the Ministry of Justice before and time will tell whether these changes are an improvement or not.

However, innovation and experimentation are vital to law firms and particularly in the area of litigation. Examples include:

• Litigation Funding, where to next?
• LPOs, the debate continues!
• New technology, because technology always changes. Ask Professor Toko!

I will return to each of these at a later date as I believe we will hear more about them all in the coming months.

In the meantime, and as a taster (since we are experimenting with food) I was interested to read the article by Gabe Acevedo, an attorney in Washington DC, writing in Above the Law, which contemplates the growing use of technology and the social media as a possible counter to the rise and rise of LPO:  Could Technology Turn The Tide Against Legal Outsourcing Overseas?, Above the Law, 12th August, 2010.

The country of Thomas Raffles and site of what Winston Churchill described as “the worst disaster and largest capitulation in British history” (the surrender to the Japanese in 1942) has undergone a remarkable resurgence since independence from Britain in the 1960s. Even more impressive is the current growth rate of the economy of the island/city state which reached an incredible 17.9% in the first half of 2010. What would Messrs Obama, Cameron and Merkel give for a growth rate a fraction of that?

Not surprisingly, many commentators’ thoughts have turned to Asia in the light of the economic woes in the West and it was no wonder that I found myself engaged in conversation a few days a go with an ambitious law firm partner who was extolling the virtues of Singapore and in particular its International Arbitration Centre.

Geography has always been of assistance to Singapore, situated as it is between India and China and it is in Singapore that many arbitrations now take place – see, for example, my notes on Deutsche Bank AG v Chang Tse Wen in the Resources/Case notes section of this blog.

In January this year the country opened the new international dispute resolution centre, Maxwell Chambers to deal with the increasing number of Asian disputes and the Government is now set on liberalisation of the professional services sector with six foreign law firms recently granted licence to practice. It seems likely that others will follow. [See: Singapore’s Swing, The Lawyer, 9th August, 2010]

In past recessions it was always the litigators who bailed out their corporate colleagues twiddling their thumbs waiting for the markets to turn and this time it is no different with many firms reporting a substantial upswing in litigation instructions. Another recent article [The fight for good fights, The Lawyer, 2nd August, 2010]  identifies the 15 firms with the highest litigation turnover and demonstrates some impressive increases over the past 12 months.

In the context not just of Singapore but in many other developed markets as well, the article expressed the view that while the current market provides litigators with an opportunity to “beef up” their client portfolios, they must be prepared to come up with a range of innovative schemes to differentiate them from their competitors.

Now everyone is talking about LPOs, what price the next big move? Perhaps there will be an acceptance after all that technology has a part to play in delivering Smart solutions to litigators and their clients, particularly if they recognise that discussing these problems early on in the life of a case can save thousands of pounds in wasted collections and processing.

There is no doubt that the litigators in Singapore are addressing this problem. After all, the Government introduced electronic filing of documents almost 10 years ago. Given the strength and sophistication of their economy, it would be surprising if they had not. If they are successful in understanding how to attract business and deliver services to their clients profitably and at a reasonable price, may be other jurisdictions should look at what they are doing and learn from it.

What have you got to lose?

Nevertheless it seems that VDRs are popping up everywhere these days and their use goes beyond the traditional due diligence exercise – from a kind of collaborative “adviser workspace”, through to a post-deal, online “transaction bible” – as the recent article The Virtual Data Room Evolution by our colleague Francisco Lorca has noted.

And those who do have an interest in such things, could do worse than to follow Francisco’s new Virtual Data Room blog.

I am not talking about Legal Process Outsourcing, nor Smart e-Discovery. I am talking about a report I first heard early last Thursday morning on the Today programme about the discovery of more than 70 flint tools and chips unearthed in Happisburgh on the North East coast of Norfolk.

Happisburgh (hands up all of you who thought it was called Happy’s Berg, when it should be pronounced Hazeboro’!!) is a small village on the coast of Norfolk between Cromer and Great Yarmouth. Until last week it was remarkable for little more than a red and white painted lighthouse, a nearby garden owned and cultivated by one Alan Gray and a propensity for its houses nearest to the sea to fall off the cliffs into the waves below, a phenomenon common enough on the east coast of England and one which arouses huge controversy every time someone suggests that it would be a better use of taxpayers’ money NOT to shore up the ever crumbling cliffs against the encroaching sea but to pay proper compensation to the house owners to enable them to move elsewhere.

Now, since Thursday morning July 8th 2010, it is famous for relics of an ancient human colony of homo antecessor or “pioneer man” a species from about 800,000 years ago in Spain. New techniques have dated the find to between 780,000 and a staggering 950,000 years old, showing that early humans reached Britain almost 250,000 years earlier than previously thought.

The previous oldest ancient human site was at Pakefield in Suffolk and dates to about 700,000 years old. As The Times put it that day …”British civilisation began in Norfolk”.

Often, it is a case of being in the right place at the right time. The ancient East Anglians migrated and/or died out as a new Ice Age turned the temperature from balmy to bleak and the area was recolonised later on so the pioneer men weren’t really in the right place at the right time.

According to Legal Week of 8thJuly, a number of deferred associates who might well have thought they were not in the right place at the right time and who went to work in the public sector while awaiting their places at recession hit law firms absolutely loved the experience. The report says they received reasonable pay, worked for the greater good and worked on more interesting and responsible jobs than they would have done as a menial worker ant in a big firm. Some were even said not to want to return to their firms!!

The sad thing is that almost certainly if and when they do return they will be treated to a diet of mundane tasks such as document review despite their experience gained elsewhere. That is the way of large law firms who have to keep the pyrimidical structure going. In the meantime the deferred associates may come to view their secondments as being in the right place at the right time, something they would not necessarily have thought likely when they first heard that their appointment was to be deferred.

May be this is all too gloomy a view. Reading about a Strategic Technology Forum held recently in that Mecca of the legal world Marbella, I was struck by the comment (Legal Week, 8th July) by Mark Dawkins, managing partner of Simmons & Simmons who have recently struck a deal with Integreon to outsource document review, due diligence and document production, that he expects the gearing between partners and assistants to decline. He accounts for his views by saying that junior lawyers will be expected to focus on higher quality work which needs to be kept in house while the other less valuable work is sent to India.

He may well be right but I fear for the growing number of aspiring lawyers who will, on that basis, graduate and not be able to find a job in a law firm, one of the unintended consequences I suspect of the current rush into outsourcing.

I have already expressed the view in recent posts that outsourcing should not be regarded as a panacea and that a well organised review of documents after sensible application of technology here in the UK may well provide a quicker and more cost effective e-discovery solution than sending everything to India, however good the reviewers there may be. Add to that, the real possibility that lawyers here will just not get the right experience and you will soon find that the pyramid is not nearly so broadly based with all the unintended consequences that brings in terms of a drop in partner remuneration and fewer funds for expansion, together with a contraction in the amount of work which clients feel it right to send to their lawyers when it can, according to those very lawyers, be done better and more cheaply elsewhere.

Being in the right place at the right time is sometimes pure chance but sometimes can be engineered. The early Norfolk inhabitants migrated or died and others took their place. Was that chance or poor planning?

I make a prediction. Despite the headlong rush to outsourcing, the next big idea will be…… insourcing.

You may laugh! After all, it is known that I live in Norfolk, where we now know civilisation in this country began and so what do I know?

But when insourcing is a reality, remember you read it here first!

This was not a reference to the E M Forster story written in the 1920s, which uses the trial of Doctor Aziz accused of raping Adela Quested on a visit to the Marabar caves to produce a trenchant commentary on the sometimes awkward relations between India and the British Raj some quarter of a century before Independence. This was a story about the growth of legal outsourcing with a subsidiary strap line proclaiming “Companies and law firms are turning to India for cut price legal services”.

Much has been written recently about the growth of legal process outsourcing and in a piece entitled A cunning plan  [7th April, 2010]  I mentioned that, on the back of outsourcing legal work to Indian lawyers at CPA Global thereby saving 20% of its legal costs, Rio Tinto’s general counsel Leah Cooper had jumped ship to join CPA as its strategy director.

A number of high profile outsourcing contracts have been signed by law firms with household names such as CMS Cameron McKenna, Osborne Clarke and Simmons & Simmons. The LPO industry in India is predicted to grow from $146 million in 2006 to $440m this year and $1.1 billion by 2014.

With Indian based lawyers charging around $50 per hour for their services against the $400 charged in this country, concerns about quality and confidentiality appear to have taken second place to considerations of cost and cost cutting. Equally, others have raised the fear that lawyers in this country will never learn to “cut their teeth” if the work they traditionally do is outsourced to Delhi. Leah is dismissive. She says “I hear that every day and my response is I didn’t learn a thing as a baby lawyer digging through boxes in a storeroom. We may have to rethink how our lawyers are trained.”

Despite my status now as a non practising lawyer, I retain a considerable affection for my chosen profession and it has been one of my enduring concerns that many lawyers are failing to keep up with the fast moving world of e-discovery, the changes in the practice directions, the new cases and the improving technology which can assist law firms to retain their influence over the course of a piece of litigation for a client. Too often, I fear, the lack of expertise or knowing where to turn for help is in danger of driving the client to bypass the lawyer and turn to an expert, with the result that the lawyer only gets to see the papers after decisions have been made about review.

Leah may well have a point when she says we will have to look at how lawyers are trained. Lord Justice Jackson also urged the profession to have some training; echoing Tony Blair’s mantra of education, education, education!

It must be legitimate to ask how long will clients be prepared to go on paying for lawyers to educate themselves at the clients’ expense?

But what do I make of this apparent rush to outsource? I am not sure how widespread it is despite the high profile announcements and I am going to see if I can conduct some research in the marketplace to see how deeply law firms are engaged in this process or at least are thinking about it.

In the meantime, I wish to strike a note of caution! Indeed I am prepared to be a little provocative.

It will doubtless be argued that there are considerable cost savings to be made by using the undoubted expertise of well trained lawyers based in India where the costs of providing the infrastructure to support them is a fraction of the same cost in the West. In our current economic straits there is irresistible pressure from clients to drive down the costs of legal advice and if law firms can deliver aspects of the preparation of a litigation case at a reduced cost by using Indian based lawyers, everyone is a winner. It creates jobs in India and the law firms can present a lower bill to their clients. This in turn will satisfy the bean counters back at the ranch and the clients may even be more inclined to contemplate other and better litigation, if they can see it is not too expensive.

But is this all an illusion? What is actually happening? Why is it thought to be a sensible move to spend a good deal of time and therefore money instructing lawyers in a different jurisdiction to understand enough about a complex case and the issues involved only for the bulk of the review to be re-exported back to the UK for an experienced and expensive lawyer to carry out a review?

Let’s imagine a typical scenario. A law firm is consulted over a piece of litigation which involves a considerable amount of electronic documents. When I say considerable I do not mean that the case has to have terabytes of data but it should have more data than can be comfortably handled manually using paper. The partner and associate involved have to decide how they are going to advise the client on the strengths and weaknesses of the case early on so that a strategy can be devised either to settle the case as soon and as cheaply as possible or to defend the case robustly ( with many other possible outcomes in between!).

They are tempted by what they have heard about legal process outsourcing and decide that they should engage one of the LPO companies to assist. In order to provide instructions to the outsourcing companies the lawyers have to understand enough about the case to ensure that sufficient information can be given to the lawyers in India to carry out the review exercise efficiently. Assuming they do so the lawyers in India then return the reviewed documents to the instructing solicitors, who then have to conduct their own review of what has been reviewed together with the next stage of disclosure or witness statements, etc.

It is conceivable that this process will result in a saving of cost but it is also possible that unnecessary extra costs will be incurred.

What if the instructing solicitors were to work smarter in the first place? They might not need the outsourcing lawyers at all, they could deliver results to their clients more quickly and they will dramatically reduce the risk that their client decides to cut them out of this early pass review process altogether next time round.

The technology to enable lawyers to do this is here. It is readily available and there are people out there willing to train lawyers to use it.

Let me give you a real live example from our recent experience!

A law firm identified around 70,000 documents which were responsive to a series of agreed keywords and was faced with the problem of how to review these in a two week period. At a cost of approximately £7,000, Equivio Relevance was used to prioritise the documents for review with 1800 documents selected as a statistically significant sample. The remainder of the documents were ranked from 0 to 100 where 0 was totally irrelevant and 100 was totally relevant. The lawyers decided that they could skim read around a third of the total that fell below the 30% relevant ranking, leaving time to carry out a more detailed review of the higher ranked documents. Despite these decisions, it was clear that there were insufficient resources to complete the task in the limited time available. It was agreed that the review would be outsourced offshore where 30 reviewers were engaged on the task at short notice. Even so, the reviewers only managed to conduct a first pass relevance review of half of the documents at a cost to the client of £15,000. The process was much slower than anticipated on account of differences in understanding the issues offshore and the fact that there was no dedicated team of lawyers sitting around carrying out the review together and able to discuss issues as they arose. In the event, most if not all of the documents that were reviewed offshore needed a second and in some cases a third pass review to resolve issues of consistency and privilege. The net result was that the UK based lawyers ended up reviewing pretty well all the higher ranked documents at least once and 8 people were involved in the process! I can guess at the expense but have no actual figures to share with you!

The conclusion to be drawn in that particular case is that outsourcing provided little or no benefit and no savings to the overall project.

This is not in any way intended to denigrate the process in general but serves merely to illustrate that not all outsourcing is automatically the answer to your prayers. In that particular case, an efficient application of the relevant technology in the UK and a review based on the results of that application would have cost significantly less than the outsourcing and would have delivered a better and more reliable result.

There is a danger that the recent increase in LPOs is replacing one problem with another. The legal profession appears to be overcoming its xenophobia but is in danger of not overcoming its technophobia; xenophobia in outsourcing to another jurisdiction with all that may mean in terms of quality control and confidentiality and technophobia in the sense of an unwillingness to get to grips with the technology available or engage with an expert to help them master it.

Sadly if the technophobia is not overcome too there is a real risk that clients will no longer be prepared to pay lawyers to do something at which they are not expert and will engage others in the process thus cutting out the lawyers from a vital part of the work they traditionally do as litigation advisers and managers!

In short, xenophobia, pretty well sorted! Technophobia, not much progress yet and danger signals ahead!

What a glory it is, particularly with its magnificent hammer beam roof, dating from the reign of Richard II (1377-99) when the original three aisles dividing the building from 1097 were replaced by “the greatest creation of mediaeval timber architecture”.

The Hall was primarily used for judicial purposes. It housed the Court of King’s Bench, the Court of Common Pleas and the Court of Chancery until the late 19th century when the High Court moved to the Strand.

It was the scene of many famous trials: Charles I, William Wallace, Guy Fawkes and Warren Hastings to name but four.

The plaque in the floor which really caught my eye for its elegant simplicity speaking to us over 450 years of the turbulent times of the Tudors was the memorial to Sir Thomas More which reads:

It is staggering to think what lies behind those simple words.

Which brings me to BP and the present oil spillage in the Gulf of Mexico.

BP is the third largest global energy company and the fourth largest company in the world. It is engaged in the sometimes dirty business of exploring for and extracting oil to satisfy the insatiable demand everywhere in the world for oil based products. President Obama would do well to remember that BP has already agreed to take full responsibility for the fallout from this leak, that much of that demand is in America’s own backyard and that US companies have also run into pollution problems in their quest for oil: remember Exxon Valdez and the Piper Alpha disaster in the North Sea!.

BP is hugely cash generative and profitable. It also features on many lists of the world’s great polluters. Incidents abound, examples being the Texas City Refinery explosion in 2005, the Prudhoe Bay oil spill in 2006 and the North Sea helicopter accident in 2009 which while not causing any pollution resulted in the death of 16 people on board a helicopter ferrying workers from BP’s platform off Scotland.

Much has been, still is being and will be written about the Deepwater Horizon oil spill in the Gulf of Mexico. As I write, despite containment efforts, an estimated 20-40,000 barrels of oil a day is still spewing into the sea with the ever widening oil slick threatening the coasts of Louisiana, Florida, Alabama, Mississippi and Texas.

I have no idea what a barrel of oil looks like and I am none the wiser when I discover that there are 42 US gallons in a barrel but that a US gallon equates to rather less than a British gallon: 3.78 litres to two decimal places so that a barrel of oil consists of about 159 litres or in British terms 35.33 gallons. Clear?

By my calculations that means that potentially 1.4 million gallons (UK) of oil are gushing into the sea every day, an unimaginable amount when one is only used to filling up an ordinary car with petrol every week or an oil tank for domestic heating as infrequently as possible!!

The litigation which will flow (sorry, no pun intended) from the spillage in the Gulf of Mexico will keep the courts in the US and elsewhere round the world occupied for years. I remember it being said that the Lehman Brothers litigation would take at least ten years to sort out and I suspect that this will be similar. Claims are likely to include:

• Claims for damages from people and businesses affected by the oil.
• Regulatory and criminal proceedings by the State and Federal Authorities in the US.
• Class actions by shareholders.

There will be others and all will need evidence. Where is that evidence now and how should it be identified and preserved so that it can be accessed when required? My guess is that a company like BP will have a sophisticated document retention policy and that much of the evidence (well over 95% of which is likely to be electronic) is already preserved and available.

Trials need evidence. Even in Tudor times there was a need for a witness to give evidence against the accused, voluntarily or under duress, and there was a need for documentary evidence. Papyrus and vellum have given way over the years to paper and now to electronic data.

I have recently joined the LinkedIn Electronic Discovery Group. This is a network of business leaders, legal and IT professionals whose objective is to create an online knowledge exchange and to explore new developments, issues and best practices that relate to the legal discovery of Electronically Stored Information (ESI).

While looking over the Legal IT Professionals’ web site (via LinkedIn) I came across an intriguing article by Christy Burke which I thought it would be interesting to share with fellow readers: [Could the BP oil spill lead to an e-discovery disaster? , Legal IT Professionals, 21st May, 2010]

The article notes an application which has already been made to a court in New Orleans where a judge has issued a 20 page protective order setting out the company’s obligations to preserve documentation. Christy discusses the whole issue of litigation hold and the need for companies like BP to have robust and proper policies on the subject if they are going to be able to deal with litigation and concludes:

BP is still trying to contain the oil from the spill and to minimize its impact on the external environment – the ocean, its shores and the marine life that lives in and around the Gulf. However, the company must also focus on its internal environment from a data perspective to ensure proper stewardship of e-Discovery and to undertake the best possible litigation-preparedness measures. Fortunately, appropriate technology is available to do legal holds, preservation, collection and redaction properly. Hopefully, BP will leverage existing software tools and expert consulting help, when needed, so they can be proactive about reducing their potential e-Discovery woes. Perhaps if they do that, they don’t have another disaster on their hands.

The article is worth reading in its entirety and I leave it to you to enjoy at your leisure.

I need to know everything! How else can I judge whether or not I need to know it?
Bernard Woolley:

…

So, how do we know what we need to know in the field of e-Discovery? Busy litigation lawyers have not got the luxury afforded to Sir Humphrey of a Bernard to put it all into context. There are numerous sources available but where are they?

Pride of place must go to the CPR and recent judgments although it is as well to be aware of the influence of the individuals and bodies we have chosen to call the ‘movers and shakers’.

To assist in knowing where to look for information on the background to electronic disclosure (or what we call Smart e-Discovery) we have been building up the resources section of the Smart e-Discovery blog under the ambitious heading of “All you need to know… ” and, by way of introduction, some of the new sections are referenced in the rest of this piece.

The context of all this is that electronic handling and processing of electronic documents is relevant in all spheres of modern business life not least because of the prevalence of electronic communications in commerce today. It has become one of those apocryphal statistics of the 21st century (that nevertheless has the ring of truth about it), namely that the majority of company documentation is now created electronically and 90% of it is NEVER turned into paper.

There have been a number of developments in this field over the last decade, but since 2008 the trickle has become a flood. For example, whereas it used to be the case that those involved in contentious business advice had no need to understand electronic disclosure, it is now dangerous for lawyers to make this assumption as can be seen from the judgment of His Honour Simon Brown QC in Earles v Barclays Bank PLC where he described a failure to be acquainted with and to abide by the CPR as gross incompetence.

Contentious business takes many forms. It may be regulatory, such as FSA or SFO or EU Commission inquiries, FCPA actions, investigations under the new Bribery Act, public inquiries, employment tribunal cases, competition cases, professional indemnity cases, construction, patent actions, IP issues or just plain commercial litigation and dispute resolution. Arbitration, mediation and other forms of ADR may also throw up the need to manage and search electronic documents.

The context is relatively simple and lawyers should have no difficulty in getting to grips with it. The main two areas are the CPR and the relevant Practice Direction to Part 31 and the case law on the subject.

So what is the current state of play and what is it that those practising in the courts of England and Wales need to know?

The judge in Earles made it clear and in stark terms that PD 31 2A (electronic disclosure) “is in the CPR and those practising in the Civil Courts are expected to know the Rules and practice them; it is gross incompetence not to”.

The Senior Master in Goodale published the draft new Technology Questionnaire in relation to ESI. The questionnaire is currently bogged down in a subcommittee of the Rules Committee and may not now be incorporated into the CPR before the autumn of 2010 but by publishing it in this way in the schedule to his judgment, the Senior Master has sent a powerful message to practitioners that this is the format they should adopt when considering electronic disclosure whether it is formally part of the CPR or not.

Adverse costs consequences may flow from a failure to comply with the Rules. Obvious, but also remember Rule 3.4(2) and the Court’s power to strike out pleadings in the event of a breach of the rules. If Judges made more use of this provision, and soon they may well do so, there would be little need for new Rules. The court already has all the power it needs to police the rules including those relating to e-disclosure.

The courts will give short shrift to parties who fail to comply with the rules and/or take their obligations seriously. Collaboration between the parties and active guidance from the courts are also expected (see Goodale). Parties are encouraged to discuss and agree the extent of the “reasonable search” which is required and how disclosure should be given. Maintaining an open dialogue with the opposition and seeking help from the court where necessary will be key.

Goodale also confirms that the incremental approach to dealing with e-disclosure is preferred. See the section where the Senior Master says that the approach is crude to begin with and then if the numbers justify it may be taken further.

The courts have adopted a policy of name and shame in respect of those who fail to discharge, properly or at all, the duty to disclose in accordance with the CPR. (See the recent cases of Al-Sweady and Sharon Shoesmith).

The courts may be moving towards the development of a type of US style “litigation hold”. This means that organisations may well need to put systems in place to ensure that electronic data can easily be preserved and retrieved when required for review. Prudence dictates that data should be preserved at an early pre action stage to avoid criticism and possible costs sanctions.

Clearly, the whole area of e-discovery/e-disclosure is subject to a process of constant change and refinement and if you want to keep up with all of this you need look no further! We plan to update the resources sections of the blog frequently and if you are curious (on a ‘need to know’ basis, of course!) you could start by referring to any of the following sections:

• Case notes
• Civil Procedure Rules
• ESI Questionnaire
• Movers & shakers.

Richard Susskind’s analogy, accompanied by the appropriate slide, the contents of which I will leave to your imagination, was one of a number of catchy themes he used to describe the changing world of legal services last week at the Commercial Litigators’ Forum. 

What came to mind as he spoke was an image of Starship Enterprise and a reminder of the most celebrated split infinitive in the entire universe.  Whilst the opening credits of Star Trek talk of the ship’s mission “to boldly go where no man has gone before”,  back on earth my mind was on the bold new frontiers facing those engaged in the business of litigation. 

Whether we like it or not, there is a momentum for change in the provision of legal services at present fuelled by a number of drivers: 

• Clients wanting more for less.
• The need for dispute avoidance and legal risk management advice.
• The development of technology and the speed with which it can deliver.
• Liberalisation: The Legal Services Act brings about a number of changes, or will do so, when it is fully in force and investors are looking at law firms or parts of them to see where they can put their money.
• After a recession ( and do not let anyone tell you we are out of it yet) why would law firms go back to the pre recession levels of employment of trainees, paralegals and lawyers when there are good people out there prepared and able to work for firms on a contract basis of for a particular project?
• Third Party Litigation Funding may well see new sorts of people overseeing litigation teams.
• Online dispute resolution: what price a dispute resolution service on E-Bay?
• Clients feel a strong attraction to the benefits of ADR and particularly to mediation. After all, not every case is a bet the ranch case and what have you got to lose?
• The case law on e-disclosure is developing. I have already commented on the case of Goodale v Ministry of Justice and the ESI questionnaire attached as a schedule to the judgment. 

Some might argue that terrible economic conditions have created all sorts of problems but once the economy recovers, everything in the garden will be rosy again. But why should General Counsel or the client go back to the old ways once they have seen that outsourcing to India, for a tenth of the cost of the same service in Europe or the US, delivers a reliable and cost effective service? 

Asked from the floor what his predictions for the next few years would be and if he had £100 million to invest where we would he spend the money, Richard said that he would look seriously at three areas: 

1. Legal Process Outsourcing.
2. A temporary agency providing senior, well respected lawyers to law firms on a contract or part time/project by project basis.
3. A start up consisting of a group of the finest lawyers to operate on the same basic model as Counsel’s chambers with smart premises, low overheads and offering fantastic legal advice where needed at a price which reflects the importance of the work they do. There would be no need to invest in expensive technology but only to participate in the marketplace for such technology, buying in what was needed on a case by case basis.

Why not?

What is life if, full of care,
We have no time to stand and stare?

Most of us rarely have time to look at the great buildings which surround our places of work or rest. W. H. Davies thought that life was not worth having if you could not enjoy a good gawp in a leisurely fashion.

Recently, I have had an opportunity to look rather more closely at some of the buildings in the City of London and in Norwich, which was, from the 11th century until it was overtaken by the expansion of Bristol largely as a result of the slave trade, the second most important city in England.

To give you a taste of what I mean, I noted that:

• The Royal Exchange was founded by Sir Thomas Gresham in 1565 as a centre of commerce in the City
• Jonathan Miles founded a coffee house in the City around 1680, the site of which is famous as the site of the original London Stock Exchange founded in 1801
• The Lloyd’s market began in Edward Lloyd’s coffee house in Tower Street in 1688 and the Society of Lloyd’s moved to the Royal Exchange in 1774
• The Normans constructed Norwich Castle in the 1070s
• Norwich Cathedral was started by Herbert de Losinga in 1096
• Thomas Bignold set up the first Norwich Union Society in 1797 to help himself insure against attacks by highwaymen and quickly realised there was a need for an insurance scheme to protect the citizenry in the event of fire, prevalent in a city largely built of wood.

What fascinates me about these institutions is their longevity. A Cathedral started over 900 years ago is still in use today, indeed I was at a service there last week. The Castle is certainly still there dominating the area around as it must have done in Norman times and Norwich Union may be called Aviva but it is still very much in business as its recent results show.

Similarly, the Royal Exchange standing at the confluence of Threadneedle Steet and Cornhill just opposite the Bank of England (founded in 1694), is now a thriving centre of commerce as it was intended to be almost 450 years ago.

What about the coffee houses? I have always thought that it is the most extraordinary development that places where men came together to drink coffee and talk should have grown into global institutions such as Lloyd’s and the Stock Exchange.

Where do we go from here? Where are the coffee houses of 2010 and into what will they be transformed?

Personally I do not see the site of the first Starbucks or Café Nero becoming the first inter-galactic communications centre, but have to acknowledge the growing power of social networking sites such as Facebook, Bebo, MySpace and new(ish) media such as Twitter, LinkedIn and Del.icio.us

After all, how could you not accept that this media is increasingly important in our lives when the news is dominated by them? John Terry certainly discovered the power of the social networking sites when his super injunction was undermined by the information already in the public domain as a result of such sites.

David Milliband is reported to have written lovingly about Michael Jackson and his brother Ed extolled the virtues of a porn site for better sex. Both denied they had posted the information and that they were victims of a scam and, of course, we believe them. Likewise Harriet Harman’s “bogus” message to the Shadow Prisons Minister, Alan Duncan.

As an organisation which regards itself as operating at the leading edge of e-discovery in this country and globally, Millnet is taking Twitter and the like more seriously. When we started tweeting, we immediately received a Tweet congratulating us on joining the 21st Century!

My point is that, while it may be difficult to see where the likes of Facebook or Twitter are going, there is no denying the power of the medium. This means that lawyers and anyone else wanting to operate successfully in a given area must get to grips with modern ways of communication. The quill pen is dead, long live the keyboard!

A recent headline in the Sunday papers [Cyber spoofs launch digital election war, Sunday Times, 28 Feb 2010] suggests that the upcoming General Election is to be fought in the social media. I don’t know but what is clear is that individuals now have huge power at their fingertips to influence and contribute to debates on all levels and it is difficult to see how this can be avoided. Meeting places are still required and while coffee may not be on sale and the meeting places are in cyberspace or the blogosphere, those keen to build relationships and businesses still need a forum in which to meet and discuss business but which is entirely different to what it was only a few years ago.

It must be worth while to “stand and stare” occasionally, particularly if that moment of thought provides the impetus to build a new relationship which ultimately will assist in improving the way a business problem is resolved.

We can help with that too. Come and talk to us about your e-discovery problems. The coffees are on us!

Over the past six years I have witnessed countless sales pitches and demonstrations of litigation support software. Reflecting on these, they have been more often poor than good and have at times been truly dire. Dissecting the reasons for this it seems there are a number of common deficiencies on the part of the demonstrator – Namely, lack of:

• detailed knowledge of the software AND / OR
• familiarity with other competing software platforms (of which there are many) AND / OR
• understanding of how lawyers work and therefore how the software assists them to be more productive AND / OR
• the ability to articulate what the service will cost and thus convince the end client that it will be a good investment.

No wonder then that lawyers often comment that they feel confused and frustrated by the technology and by the competing claims of the community of service providers.

Back in 2004 it struck me that the only way to acquire a detailed understanding of e-discovery technology and how to fashion this into a coherent set of services that meet the requirements of lawyers was to ‘get my hands dirty’. Initially this involved becoming familiar with the intricate details of how Millnet was going about providing e-discovery services on the EDS v BSkyB matter (Millnet was providing the data processing and iConect hosting via GlobalConect to DLA, representing EDS). This baptism of fire illustrated both the need for a detailed understanding of the technological issues and the potential for disconnect between sales rhetoric and what it actually takes to make a project run smoothly.

Fast forward to 2009 and Millnet commenced hosting of CaseLogistix, having previously either worked alongside various other organisations to provide hosted review services or more recently hosting Concordance and Nuix ourselves. Even with a detailed understanding of how to use other litigation review software platforms (in particular we’ve had a lot of previous experience with iConect and at one stage put ten members of our team, myself included, through the full iConect ASP training course), it still takes dozens of hours of actual use of a new piece of software to become proficient.

I liken hosted review platforms to learning to use Excel. If all you need to do is add up a column of numbers then it will take less than 5 minutes to learn. If you want to build powerful and necessarily complex dynamic spreadsheet models then you will require not only a detailed knowledge of all the features and functions of Excel but also a good understanding of the business you are attempting to model, financial concepts generally and a degree of logic and creativity to design an approach that is optimal.

I believe the best (only?) way to learn the detailed functionality and application of a new technology is by immersing yourself in the technology and getting involved in the nitty gritty of demonstrations, developing marketing and training collateral and actually undertaking training sessions yourself. This is the philosophy we adopt at Millnet and we have been steadily building a team of people who have considerable firsthand experience of using the software that underlies the services we provide. This extends beyond just the review software but also all the processing and production steps before and after associated with both electronic and hard copy documents.

If being ‘hands on’ is the best way to learn, then I guess the next question is why the Managing Director? Management theory would suggest that there should be a hierarchy with well defined roles performed by experts with highly specialised skills. To some extent this is true of Millnet.  However in an emerging and rapidly evolving service niche, my view is that our leadership must remain close to clients, the projects we assist them with and be hands-on with the underlying technologies we employ in providing e-discovery services. In this way we can be proactive in anticipating client requirements and tactical as to how we navigate the rapidly changing commercial and technological landscape.

Therefore, for the foreseeable future I and numerous Millnet people will continue to be close to the coalface. We look forward to training many more lawyers and their clients to make the most of CaseLogistix, Nuix and various other new technologies in the months to come.