Reflections & Predictions: DSARs as a weapon

Andrew Haslam, eDisclosure Project Manager at Squire Patton Boggs, reflects on the unintended consequences of DSARs and the cautious progress of the eDisclsoure pilot. Plus who will win the Six Nations?

That time of the year again! All the Christmas adverts being released, and (with almost as much breathless anticipation) the annual SCL predictions for 2020, with a bit of reflection on the year that was. My field is eDisclosure and it’s been a busy old time of it.

We have nearly finished the first year of the Disclosure pilot, complete with new rules and a new document for lawyers to grapple with, the Disclosure Review Document or DRD for short. The pilot is intended to run for 2 years, but my very first predication is that it will be extended by another year as the backlog of existing cases has meant that there haven’t been (and won’t be) enough matters run under the new procedures in 2 years for the rules to be properly evaluated. That being said, the initial feedback is that the use of the DRD itself is a “good thing” as it condenses all the disclosure information into a single point of reference for judges to use, and is encouraging parties to be more cooperative in arriving at an agreed version. My personal view, is that outside of the “London Bubble” there is still a lot to do to educate the judiciary on the aims of the pilot as they are still defaulting to the disclosure process they have always known. It would be good at the end of 2020 to record a change in this situation.

On a side note, during 2019 I was part of an ILTA initiative to develop a best practice guide for the exchange element of the Disclosure pilot. The result was both an industry endorsed protocol and accompanying guidelines that can be downloaded for free here.

In strictly parochial terms, looking at Litigation Support software, Relativity continues to be the market leader but is under assault from a number of nimble cloud based offerings with technological advances and different models on costs. I don’t think a clearcut competitor to Relativity will appear, and it will still end 2020 as number 1 in this market, but I do expect the circling pack to continue to nip at the heels of the Chicago giant and eat into its market share. At some point Microsoft is going to buy a product to slot into the current Office 365 gap for a Discovery Review tool, perhaps this will happen in 2020, perhaps it will be Relativity, or perhaps one of the competition. On that nebulous basis, if it happens in 2020, I claim a prediction.

Part of the increasing technology scope provided by all the software products is the ability to ingest information from sources other than traditional email and attachments. I expect this trend to continue in 2020 and cases to emerge where all the information under scrutiny is from non-email homes.

In a classic case of unintended consequences, Data Subject Access Requests (DSARs) were intended to allow individuals to check on what personal data was being held by organisations and how it was being used. The advent of the GDPR legislation has turbo-charged the “weaponisation” of these requests at the hands of lawyers as they are free means of initial disclosure. 2019 saw a host of offerings from law firms and suppliers (including Squire’s own). I expect that the current multitude of solutions will start to consolidate in 2020 as clients go looking for the most efficient and cost effective way to deal with these annoying “death by a 1,000 cuts” requests and as suppliers/law firms further improve their workflows and economies of scale.

My traditional end to this piece is to reflect on the performance of the England Rugby squad. I’d rather skip the World Cup Final, and remember the amazing semi-final win

against New Zealand, which has set me up in a very optimistic frame of mind for the 2020 Six Nations tournament. Dare I stick a toe in the pundit’s water, and claim an overall win? I think I do, which has probably condemned them to a second or third place.

These are Andrew’s personal opinions and are not the opinion or policy of his employer.

Published: 2019-12-16T16:00:00

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