2012 Predictions 11: Dale’s Disclosures

December 14, 2011

{b}From Chris Dale of the {eDisclosure Information Project: www.edisclosureinformation.co.uk/} {/b}

As usual, my predictions for the coming year are delivered more in hope than expectation, given in the hope that they might change things rather than as a realistic estimate that they might do so in the next 12 months. As befits predictions made for a UK magazine, most of these have a UK slant.

1. The key words for solicitors will be ‘proactive’ and ‘information governance’. Instead of seeing an eDiscovery event (a stage in litigation, the requirement of a regulator, part of an internal investigation) as merely another transactional exercise, they will start making positive recommendations to their clients about how a staged approach to information governance can mitigate the cost and disruption of the next eDiscovery event. There are two prerequisites for this – one is that they educate themselves on the subject first, and the second is that they are willing to give a certain amount of time and resource as an investment to win future work.

2. Another new word for the solicitor’s lexicon is ‘disintermediation’, the idea that they will (not ‘might’) find themselves left out of that part of the discovery process which has traditionally earned them the fees which subsidise the rest of the process. Outsourcing and technology can do a better job more cheaply, as can the clients themselves in many cases. Those who recognise that the mechanical parts of the eDiscovery process are better done elsewhere will keep the intellectual and purely legal parts of the job for which the clients are willing to pay good fees.

3. The more alert barristers will realise that one no longer necessarily needs big teams to manage large cases, and will join the service and software providers and the big consulting firms in taking large bites out of the work which solicitors have traditionally seen as their own.

4. Judges will increasingly self-start on case management, paying more attention to the duty of active management imposed on them by the rules and on the reasons why Part 1 CPR is called ‘The Overriding Objective’. Solicitors will face increasing expectations that they define up-front the scope and cost of the task ahead of them; they will also face costs penalties for failing to do this and for causing opponents to run up costs unnecessarily.

5. The Serious Fraud Office will bring charges against a UK company or, perhaps, a foreign company with sufficient UK interests to bring them within the scope of the Bribery Act, possibly for activities by third parties somewhere else in the world. In the resulting scramble to make sure that they have ‘adequate procedures’ to prevent bribery, companies will realise that there is common ground between the information governance reforms needed for broader eDiscovery requirements and the Bribery Act ‘adequate procedures’, and that the same investment will cover both.

6. Non-US eDiscovery investment, particularly in Asia and the EU, will rise as a proportion of the total eDiscovery spend.

7. The US will stop thinking of itself as ‘two years ahead’ of everybody else as its own eDiscovery rules come under increasing fire from within. With that will come a more realistic approach to data collections from jurisdictions whose discovery rules are more restrictive than those of the US. That will be matched by a growing realisation, in the EU at least, that US eDiscovery cannot simply be ignored, particularly for those seeking the benefit of US trade and US courts. We will not see a result in 2012, but changed attitudes and a better use of technology will be a good start.