I had several reactions on reading Chris Dale’s excellent blog post on futile attempts to eliminate risk, and the collateral---and sometimes absurd---consequences those efforts often impose on society. My first reaction, frankly, was that someone woke up on the wrong side of the bed that morning. Chris is unusually harsh. Although, as the piece goes on, you begin to share his righteous frustration with the inanity of bureaucracy. I also thought he made a major error in the piece: he seems to think we’re better at less-intrusive government here in the US. I’ll take his cobblestone street and raise him a trans-fat free New York City. Or the “do not eat toner” warning on a printer cartridge. Or, one of my personal favorites, “Remember, objects in mirror are actually behind you,” on a motorcycle helmet-mounted rear-view mirror. While the UK may have perfected the nanny state, we’re not all that far behind here.
I always say that the perfectly compliant organization does no business. Simple. You’ve eliminated all risk; just stop manufacturing anything, processing anything, or selling anything. Done. As soon as a business makes, processes, or sells anything, the question becomes one of risk mitigation rather than risk elimination. The common phrase here is “risk appetite.” Or, how much risk are you willing to swallow?
As applied to eDiscovery, the concept of risk generally pertains to two questions: “what can I destroy?” and “when do you stop searching?” The first question is more one of risk appetite, the second more one of cost appetite. It’s here that Chris is absolutely right when he says that the UK rules are too permissive. The concept of legal hold in the US is generally understood and, for the most part, easily applied. Sure, at the edges there will be litigation. In the UK, the idea that there is no concept of legal hold indeed flabbergasts US lawyers. Further, the idea of pre-trial discovery being truly immediately prior to trial, and even then limited, runs counter to basic US ideas of discovery. The underlying problem in the US is less one of people or process and more a technology one: data has gotten too big and too dispersed to be effectively wrangled by human beings. The issue isn’t just data volume, but also the data diaspora that international high-speed data lines and now the Cloud impose on companies. Data mapping---and the follow-on data preservation risk---has become just as risky as document review.
And human-only review is a money pit. You can spend tons of money, and still not get good results. And as data volumes become larger---and one certainty in life is that data volumes are ever-increasing---the cost goes up and quality goes down. The future is that the cost will approach infinity and the quality will approach zero. That is, unless litigants---and I’m including the judiciary in that group---begin to adjust to the future as recommended by the likes of Judge Peck and Mark Michels. Predictive Coding has made a headway to reverse this downward spiral of quality, so those who believe the old methods are best are heading to extinction. I’ve heard it said that technology is solving a problem that technology caused. I don’t think it’s that simple, but it’ll do. Even with new technology, however, we’ll never be rid of the question: how much risk are you willing to swallow?
