Predictions 2013, and beyond: Part 8, Chris Dale

December 13, 2012

We are asked to give our predictions for 2013, 2023 and 2053. I will be 100 in 2053 and, if there is one thing which I have learnt in the years clocked up so far, it is that even short-term predictions are almost always confounded by events. I speak as one who staked his career on the automation of electronic disclosure / electronic discovery in the early 1990s, so I know all about the perils of futurism. I will content myself with looking one year ahead.

{b}The new case management rules{/b}

All Fools Day 2013 brings the implementation of the Jackson Reforms. The downside to the “big bang” approach (that is, the implementation of all the recommendations in one go) means that the case management and eDisclosure aspects have been concealed beneath fierce arguments about other things covered by Sir Rupert Jackson, as well as by parallel initiatives which were nothing to do with him such as alternative business structures and cuts in legal aid.

Accordingly, I expect many lawyers to be taken by surprise by the wider range of cases requiring pre-CMC discussions about the scope, method and cost of eDisclosure – but then there are many lawyers still talking about “relevance” and “Summonses for Directions” which disappeared from case management in 1999.

We can expect to find lawyers sent reeling from CMCs by angry judges because of their failure to come equipped with the information required by the rules. We will also see perfectly good cases settling because solicitors find themselves wrong-footed by opponents who run rings round them simply because they are on top of the subject.

We will also, unfortunately, see the opposite – parties who attend CMCs ready, willing and able to discuss eDisclosure issues, only to find the judge ticking the familiar box for standard disclosure or asking plaintively if the parties cannot “just go away and sort these things out amongst yourselves”. Lawyers are going to have to become harder on some judges (“With the greatest of respect, may I refer Your Lordship to the court’s duty of active management as amplified specifically in respect of disclosure by Rule 31.5”).

{b}Predictive coding and managed document review{/b}

2013 will be the year of predictive coding and managed document review. Lawyers who have hitherto muttered about “black box technology” will actually go and look at some of it to see how it can reduce the volumes for review. This sudden accession of interest will reflect the growing realisation that much of the hitherto profitable work which has propped up their litigation practices is disappearing either into the hands of the clients themselves or to rival business models, specifically the providers of managed document review services. 2013 will be the year when Richard Susskind’s question “What are lawyers uniquely qualified to provide?” will emerge as the central issue confronting litigation departments. At the top end, clients will still be willing to pay for tactical and strategic advice and, perhaps, for advocacy. At the bottom end, solicitors are good at proceeding with the procedures and filling in the forms required by the court. As the money-spinning work of document review evaporates, so will the need for the junior and mid-ranking staff who have performed those functions. Costs budgets required by the court and fixed fees demanded by the client will encourage this sudden interest in the certainty and transparency which managed review brings.

{b}Judicial activism{/b}

In the US, we will see the rise of “judicial activism” as judges increasingly take control of the management of eDiscovery and expect more from the lawyers appearing in front of them. We may see moves towards rule changes which specifically require active management of cases on the UK model, as well as costs-shifting to place the burden of over-broad discovery requests on the shoulders of those who make them. They will also look at the effect of our costs budgets – couple that with costs-shifting and you really could see changes in US eDiscovery. “The UK is two years behind the US” they like to say over there. I don’t think so.

{b}Cross-Border eDiscovery from the US perspective….{/b}

2013 will also be the year when the US realises that trying to kick down the doors of other countries’ data protection and privacy laws is both offensive and counter-productive. US lawyers will begin to see the value of acquainting themselves, and thence their opponents and the court, with the implications of the conflict between the Federal Rules of Civil Procedure and the restrictions of other jurisdictions, and will work harder and earlier to mitigate the effect of that conflict. They will actually start producing evidence of the restrictions (perhaps in the form of a certificate as to the law from the local Information Commissioner) instead of just complaining that the damned foreigners are being obstructive, and will enter into discussions about limiting the scope of discovery requests to that which is actually needed. This novel approach (“Gee! Ya mean I don’t gotta collect it all?”) is one of the specific recommendations in the Sedona Conference International Principles, and may even catch on in domestic US litigation (by 2053, that is).

{b}…and in the EU{/b}

Meanwhile, at the European Commission, the attempts to introduce a new Data Protection Regulation will result in a heavily watered-down Regulation which upsets everyone, achieves very little, places immense burdens on businesses, and provides lots of cushy jobs for expensive bureaucrats. This is not really a prediction, of course, just a statement of the obvious.

{b}And as for me…{/b}

I do not expect to broaden either the subject-matter which I cover or the jurisdictions which I visit, mainly because I agree with Mike Taylor’s view, made in an earlier SCL set of predictions, that it will be 2053 before I work out how to be in two places at once. The ambition, perhaps falling slightly short of being a prediction, is to find new and different ways of getting messages to the diverse audiences to which I aspire. One or two of the providers of software and services are moving away from dull recitals of functions, features and benefits into the use of social media, video and lively online presentations to get messages across. I want to do the same.

{b}{i}Chris Dale is a former commercial litigation partner turned e-disclosure consultant. He runs the e-Disclosure Information Project and is a leading speaker in that field.{/b}{/i}