Predictions 2014: Batch 2

December 6, 2013

{b}Charles Holloway, Director, Millnet Ltd:{/b}
• An increasing number of litigation lawyers will realise that they need to have some basic understanding of the concept of electronic disclosure. In my view, it is already difficult, if not impossible, to discharge the obligations which lawyers owe to the courts and to their clients without a consideration of this issue. A failure to engage with this issue is bound to result in a negligence action against a law firm before too long. 2014 will be the year when saying there is no need to engage with this issue ceases to be a realistic option!
• Related to the above, it will become mandatory for lawyers to undergo training in e-disclosure. This is not really a prediction but more a necessity! It also comes from the Jackson Report (Chapter 37, paragraph 2.9) where CPD training in e-disclosure is recommended.
• There will be a substantial rise in the number of cases involving e-disclosure where lawyers will make use of predictive coding/technology assisted review where that technology works well (e-mails and text files, for example). Lawyers often say they are waiting for the ‘right’ case. In the USA, they have found a number of ‘right’ cases. It will happen over here too.
• Clients will increasingly take the initiative by taking matters into their own hands. After all, why would they continue to pay for external law firms to handle the issue of e-disclosure if they are no good at it? We are already seeing cases where the end client engages with an external service provider (ESP) before the law firm sees any of the data. This will increase particularly where the ESP offers consultancy advice throughout the currency of the case.
• There will be litigation arising out of the new costs budgeting rules, leading to a further increase in the cost of litigation rather than the decrease intended by the Jackson Big Bang reforms. This may, however, only be a temporary phenomenon because, as matters settle down and the reforms become embedded into the culture, there will over time be less need to argue over such issues, particularly if the courts are robust in the way they deal with the early cases.
• 2014 will see the beginning of the end of the billable hour…….only joking! However, clients will continue to search for alternative ways for lawyers to charge for their services.
• And the most surprising non-development over the past three years? I am not aware of any case where the outcome has actually turned on an e-disclosure point. Many cases have involved issues related to e-disclosure but I do not know of any where the actual result of the case was materially affected other than by an award of wasted costs, for example.
• Most surprising development? Is there a crack in the previously solid wall of US discovery practice which has traditionally delivered a WMD (‘weapons of mass discovery’) approach to litigation? An article by Philip Favro of Symantec and Utah District Court Judge Derek P Pullan in the Michigan State Law Review volume 2012, entitled ‘New Utah Rule 26: A Blueprint for Proportionality’ suggests there may be.

{b}Ben Horton, Solicitor, Lexis®PSL IP & IT, Lexis®PSL{/b}

2014 will be a ‘back-to-the future’ year as the IT cycle finishes its rotation to the 1960s – thin clients, remote processing and the service bureau. Off-site number crunching is back as organisations outsource to big data boffins and fearsome computing power. Where once IT lawyers patiently explained that computer crime isn’t really what we do, we shall now explain that cybercrime is exactly what we do. While not reversing the clock, the surprising and successful recent challenges to ICO monetary penalties will further slow the Data Protection juggernaut. I shall buy a Bitcoin at exactly the wrong moment.

{b}Marion Oswald, Head of the Centre for Information Rights, University of Winchester: @_UoWCIR{/b}

Last year I predicted that there would be pressure to re-think the way that personal data is shared in light of abuse scandals. It’s sad that I have to repeat that prediction this December.
The Serious Case Reviews into the deaths of Keanu Williams and Daniel Pelka, CEOP’s assessment ‘The Foundations of Abuse’ and the Children’s Commissioner’s inquiry into child sexual exploitation in gangs all criticised the robustness of data sharing between public bodies. ‘Instances of concern tended to be viewed in isolation with a lack of attention to patterns developing’ (Williams SCR). So why, when hardly a day goes by without the trumpeting of the potential of Big Data, data intelligence, profiling and so on, do these issues persist? A crisis of confidence around data protection? Over-reliance on consent? Privacy concerns around problem-profiling? Little understanding about the value of intelligence? Fears that anonymised data will be easily re-identified? Incompatible IT systems? Lack of trust between agencies? Cautious lawyers?
I predict (and hope) that the outcome of the Law Commission’s consultation into data sharing between public bodies will challenge us all to get to grip with these issues once and for all.

{b}Michael Taylor, Barrister at 4 Pump Court:{/b}

Courts, and possibly Parliament, will be called upon to decide questions of ownership of electronic information. One can own electronic carbon credits ({i}Armstrong DWL GmbH v Winnington Networks Ltd{/i} [2012] EWHC 10 (Ch)). Presumably one can own Bitcoins. Ownership of e-mails and other electronic information remains an important but unresolved question ({i}Fairstar Heavy Transport N.V. v Adkins{/i} [2012] EWHC 2952 (TCC) and [2013] EWCA Civ 886).

{b}Mike Taylor, Director, i-lit, the independent legal consultancy:{/b}

• E-disclosure service providers will continue to promote predictive coding, lawyers will continue to be to dubious.
• More firms will bring e-disclosure document review tools in-house.
• The continued focus on the quality of project managers at e-disclosure service providers will drive up the salaries of good ones and create a drain of quality litigation support managers from law firms who don’t want to match high salary demands.
•Every firm in the top 50 will have arrangements that allow access to a low cost document review service.