Predictions – Doggy Bag

January 17, 2011

{b}Matthew Davis (Litigation Support Lawyer) and Bill Onwusah (Litigation Support Manager), Hogan Lovells International LLP{/b}

{i}‘There is no reason anyone would want a computer in their home.’ — Ken Olson, president, chairman and founder of Digital Equipment Corp. (DEC), maker of big business mainframe computers, arguing against the PC in 1977.{/i}

Solicitors who do not understand electronically stored information and its disclosure will find themselves increasingly exposed as a result of the new Practice Direction (CPR PD31B) and increased judicial involvement in investigating and setting the parameters of a ‘reasonable search’ for electronic documents. The Practice Direction will become the de facto standard for electronic disclosure, even in cases where it does not formally apply.

Technology that has been adopted by the commercial arena will start to have a significant impact in litigation and regulatory matters. The challenges of identifying, preserving and collecting data stored on smartphones/other portable devices, social networking sites and the cloud will become very real for those in this jurisdiction. Lawyers in the UK will also cotton on to what their US counterparts have known for some time: the likes of Facebook are a treasure trove of foot-in-mouth evidence the likes of which often have to be seen to be believed. Many using cloud services will discover that the failure to involve in-house or external legal counsel when drafting agreements with cloud service providers will result in real difficulties when establishing where the data is, which jurisdiction’s laws apply and how to retrieve it en masse.

For document-heavy cases, lawyers will continue generally to ignore the possibilities presented by grouping/clustering and prioritisation/predictive coding technology as integrated into a review workflow. Unless it is impossible or impractical, they will continue to play ‘pin the tail on the donkey’ with keyword searching followed by the supposed ‘gold standard’ of human review by large numbers of junior personnel.

Clients will react to the cost of electronic disclosure by implementing their own solutions and project managing their own cases. After a fair amount of pain, those without sufficient physical and technological resources will realise that this is not their day job and will go back to outsourcing this work to their lawyers and service providers.

An electronic disclosure services provider will attempt to link their product to the Xbox Kinect Interface and claim that it will allow a lawyer to ‘virtually interact with their client’. Electronic disclosure will become a truly ’virtual” experience as lawyers ’virtually’ turn over stones to find documents. ‘Virtual’ will then overtake the words ‘paradigm shift’ as the most overused/irritating term in the industry.

{b}From Paul Heritage-Redpath, Senior Product Manager, IRIS{/b}

I am late filing, but by the editor’s good grace my musings may yet reach a wide audience. There, friends, is the proof that McLuhan was right. The Internet has become our primary medium, and the most fertile ground left for legal debate is the battle over the degree of ownership by corporations of data given by individuals whose informed consent may be inchoate at best, in a world where paper is beginning to look distinctly anachronistic.

This is clear from the number of articles carried by the SCL on eDiscovery over the last year. My worry is that we are raising a generation who are blissfully unaware of the consequences of living their young lives as a giant diary, readable by anyone anywhere, and will discover too late that information shared on the Internet is immortal, and can never be put back into the bottle.

The desire to connect is universal, and whilst social networks will morph, it is hard to see them now withering. They do represent a legislative challenge, since their users perceive the medium as effectively invisible, and the conversations being between individuals who in earlier years would have been physically present: yet the medium opens up legal relationships with multiple commercial entities; the hardware provider, the data network service provider, the ISP, the Social Network operator and the advertisers thereon. The age-old contractual issue of ‘who is my customer’

That is the societal aspect; what of technology in the profession?

When I became a trainee solicitor, I arrived carrying my own PC in both arms. That small step in a small firm has had its echo in the announcement last June that Eversheds’ staff could buy their own technology, to support them as they saw fit.

The significance of this was missed in the general iPad hoopla; this was never a story about the gadget du jour, it was the final recognition of a long-growing trend: that consumer technology trumps what corporates provide to workers. It sounds the death knell of the traditional working practice of ‘turn up, and use the tools given to you’.

Our always-on working lives have freed us geographically whilst arguably robbing us of the freedom ever to be entirely free of work concerns. Increased use of personal devices, increased mobility: will 2011 be the year my prediction of a major data protection breach by a law firm hitting the news finally comes true? With the flight to distributed storage continuing, it can only be a matter of time …