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E-discovery: Difference between revisions
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A dispute has, from a plaintiff’s perspective,<ref>It may be different from a defendant’s perspective, but we doubt it: the univariate consideration is simply “should I immediately settle, or engage lawyers to commence the pantomime of driving down the settlement?”</ref> a reductively simple complexion: | A dispute has, from a plaintiff’s perspective,<ref>It may be different from a defendant’s perspective, but we doubt it: the univariate consideration is simply “should I immediately settle, or engage lawyers to commence the pantomime of driving down the settlement?”</ref> a reductively simple complexion: | ||
“I believe I am entitled to value X, | “I believe I am entitled to value X, but I have received value Y”.<ref>Thought leaders and amateur psychologists will cavil at this and tell us that, no, sometimes the aggrieved just want their day in court. Not, you fancy, when they realise how much they will pay for it.</ref> | ||
This is, in the vernacular, a [[univariate]] calculation. There is an amount to be claimed — ''X - Y'' — and a maximum amount one is prepared to pay to recover that amount — ''(X - Y)/n'' — where ''n'' will vary depending on the strength of customer’s original conviction, but logically must be greater than 1. | This is, in the vernacular, a [[univariate]] calculation. There is an amount to be claimed — ''X - Y'' — and a maximum amount one is prepared to pay to recover that amount — ''(X - Y)/n'' — where ''n'' will vary depending on the strength of customer’s original conviction, but logically must be greater than 1. | ||
For those engaged to help resolve the dispute, however, the problem is [[multivariate]]: how reasonable is your client’s assessment of its own chances; how solvent is the defendant; how likely is it to defend, how vigorously, and how skilfully, which forum is most convenient to resolve that dispute; how sympathetic is that forum likely to be — each of these factors one can assign a probabilistic assessment at best. They are [[known unknown]]s. The great skill of the advocate is to assess them: should the assessment come inside the customer’s calculation, there is a livelihood to be made. | For those engaged to help resolve the dispute, however, the problem is [[multivariate]]: how reasonable is your client’s assessment of its own chances; how solvent is the defendant; how likely is it to defend, how vigorously, and how skilfully, which forum is most convenient to resolve that dispute; how sympathetic is that forum likely to be — each of these factors one can assign a probabilistic assessment at best. They are [[known unknown]]s. The great skill of the advocate is to assess them: should the assessment come inside the customer’s calculation, there is a livelihood to be made. | ||
The cost of discovery is part of that assessment. Since we can now analyse, tag and redact cheaply, more material is in scope for formalistic arguments. | |||
Now no-one would suggest, God forbid, that lawyers gratuitously run down blind alleys to clock fees against their ''own'' clients, but it is a well-established technique to do this against the ''opponent’s'' client, precisely to present the cost of ongoing litigation as an incentive to early settlement. | |||
We hypothesise, without any evidence whatsoever, that the number and type of documents having a measurable impact on the outcome of litigation is broadly the same in 2022 as it was in 1980. We doubt many documents of this nature would have been turned up by e-discovery but not manual discovery. That is to say, one would find all smoking guns (needles?) in the part of haystack one could search by hand, and not the great remainder that can only be covered by machines. If that is the case then we wonder whether e-discovery has made any difference to customer outcomes at all. | |||
{{sa}} | {{sa}} | ||
*[[Innovation paradox]] | *[[Innovation paradox]] | ||