Long Trials trial gets longer trial

Mr Justice Andrew Smith, Judge in Charge of the Commercial Court, has issued a statement about the Report of the Commercial Court Long Trials Recommendations.

The Recommendations will be put into practice from 1 February. The trial period, however, will run until the end of November 2008, and not just to July as was originally envisaged.

The Statement makes it clear that practitioners will be expected to be familiar with the recommendations and to conduct litigation accordingly. Where relevant, cases which have already had a Case Management Conference will be reviewed to see if further case management orders would be appropriate.

Mr Justice Andrew Smith makes the point that, despite its title, the Report does not relate only to long or complex cases. He envisages that its provisions will apply to most cases in the Commercial Court. Some of the ideas might, indeed, be used elsewhere – the Disclosure Schedule, for example, is a useful aid to identifying areas of agreement or otherwise as to disclosure sources in any case where there are many documents.

In addition to the Report itself, there is a related press release and some articles on this site which relate or refer to the Commercial Court Recommendations.

The cost of printing electronic documents

Charles Christian’s Orange Rag has a helpful article called Think before you Print which sets out the costs of printing documents for review – which involve more than the bare printing costs.

It is by no means a finger-wagging, tut-tutting article. It accepts that many people like to work from paper, and includes some suggestions from Pinpoint Global as to some sensible culling which might be done before the whole lot is sent to the print-room.

It is worth bearing these costs in mind at the outset. A decision not to review documents electronically is often made on the strength of an up-front quotation which is the more difficult to accept precisely because it is seen up-front. Printing costs, by contrast, are seen only in retrospect, usually spread between several quarterly bills. If these prospective expenses were factored into the costs estimates given to the clients, the apparent expense of electronic review would diminish.

Home

The impact of Qualcomm for UK lawyers

The sanctions judgment in Qualcomm v Broadcomm emphasises for UK lawyers the apparent conflict between their duty to ensure that their clients give full disclosure and their parallel obligation to keep disclosure proportionate. The two duties are not in fact irreconcilable, but it can be hard to see that and harder to achieve it. This article looks at what the judgment actually covered.

My article Predicting Litigation Responsibility for 2008 was written overnight on January 7. Allowing for the 8 hour time difference between Oxford and San Diego, it was written at about the time that Magistrate Judge Barbara Major was delivering the judgment in which she sanctioned Qualcomm Inc. to the tune of $8,568,633.24, and reported several of Qualcomm’s lawyers to the California State Bar. Although it is the sanctions which caught the eye, what the judge said about the responsibility of individuals is perhaps more important.

Discovery Mining passes source code audit

Discovery Mining has announced that the source code of its Web-hosted online review application has passed a rigourous security audit.

The security of the data we put into the hands of others is a hot topic at the moment, as Gordon Brown’s Government carelessly distributes our personal information far and wide. Fortunately, most companies who handle discovery data have rather higher standards than Gordon Brown’s Government, and it is no bad marketing point to be able to prove it.

Spotting the turning-point at the starting-point

The main character in the film The Butterfly Effect explores every possible event in his search for the right answer, only identifying the correct turning point at the end of the last reel, after much unnecessary tribulation. The aim of close court management of litigation is to find the turning point much earlier.

In his speech to an e-disclosure conference last week, His Honour Judge Simon Brown QC emphasised that the judge’s role is to find the facts. His context was the selection of the documents which proved the facts, and the desirability of identifying the key issues – and thence the key documents – as early as possible so as to reach the right conclusion with the minimum of time and expense.

Looking in retrospect, even the most partisan of parties can usually see how a court reached the factual conclusion that it did reach. I don’t mean they necessarily agree with the weight given to any one fact, still less that they accept the judge’s application of the law to those facts, but by the time the witnesses have performed (or not) and the spotlight has focused on a handful of documents to the exclusion of the rest, a set of key facts – or perhaps just one – is seen as the turning point.

And everybody, but particularly the loser, wishes that the significance of that fact, now so obviously the turning point, had been seen as such very much earlier. Everybody could have been saved a great deal of time, trouble and expense if they had spotted earlier what they now see as the nub of the thing.

E-Disclosure – What does the court expect?

His Honour Judge Simon Brown QC told a London conference audience what the UK courts expect from those who appear before them when electronic disclosure is a big element in a case.

I have written separately about the conference organised by Marcus Evans in London on 14-15 January 2008. His Honour Judge Simon Brown and I were speakers on the second day with a session billed as The Mutual Expectations of Clients, Lawyers and the Courts.

The first day included two sessions which prepared the ground which we had proposed to cover, not least a very interesting Panel session on reducing the costs in which Judge Brown took part and which had ranged widely. That allowed us to take a less structured approach than had been planned.

Growing interest in e-disclosure sources

A picture, they say, is worth a thousand words, so to save a lot of typing, I give you the graph which my Blog host, WordPress, produces to show the hits since I began the blog a year ago.

The biggest jump comes in July 2007, when I spoke to the User Group of the Birmingham Mercantile Court and started writing about the interaction between the CPR, the difficulties of e-disclosure and the technical solutions which exist to solve them. The graph goes steadily upwards from there, partly because the range of topics increased, partly because other web source started to link to my blog, and partly because of collateral publicity from speaking or from printed material.

One does not expect big numbers of visitors for a relatively esoteric subject – no one wanders into a site like this by accident – so the visitors must be presumed to be interested ones.

Heavyweight appointments by H5

H5, the San Franciso-based provider of automated document analysis and information risk management services for the legal industry, has made two top-flight appointments in the last few days.

Raymond L Ocampo Jr, former senior vice president, general counsel and secretary of Oracle Corporation has been apointed to the board of directors.

Paul Polking former executive vice president, general counsel, and member of the Management Operating Committee for Bank of America Corporation has joined H5′s strategic advisory board.

Intimidation by Terabyte – scope of e-disclosure

The judgment in Hands v Morrison Construction Services Ltd [2006] may have related to the special circumstance of an application for pre-action disclosure in the TCC, but it has some messages applicable to e-disclosure generally

We are very short on case law in the field of e-disclosure here, and even shorter on jokes, so to find a joke in a report of an e-disclosure application is a rarity twice over. M Briggs QC is almost certainly not the first to note the pun implicit in the word “terabyte” in the context of intimidating quantities of electronic document sources, but given the paucity of UK sources, his reference to it may well be a first in a UK judgment.

The case is Hands v Morrison Construction Services Ltd [2006] Adj.L.R. 06/16, reported as [2006] EWHC 2018 (Ch). I found it published by NADR, the Nationwide Academy for Dispute Resolution. If that is the only place it lurks in generally available published form then (with great respect to NADR), it is not surprising that it is not more widely known. That is my excuse, anyway, for not coming across it until Ray Werbicki of Steptoe & Johnson referred to it at a conference last week.

Debating the Aikens Report

I wrote on Friday (Give more credit to the Aikens Recommendations) with a more positive view of the Long Trial Report and Recommendations than had been given by John Reynolds of White & Case (Aikens misses the big picture) in Legal Week.

Now Mr Justice Aikens, the Chairman of the Working Party, has weighed in with a restrained comment to the effect that the Recommendations do in fact have the emphasis on rigorous case management and the acceptance of the need for a culture change and for more judicial resources which Mr Reynolds sees as necessary.

Irish Court rules on data extraction

Anyone involved in electronic discovery may be interested in a decision of the Irish Supreme Court in Dome Telecom v Eircom.

The point at issue was whether a party can be required to create a document as part of the discovery / disclosure exercise by extracting and collating electronic data into a report. The majority finding was that, whilst the exercise contemplated in this particular instance was disproportionately onerous, the principle was sound – that is, a party may, in an appropriate case, be made to collate data into a document which did not already exist.

Give more credit to the Aikens Recommendations

John Reynolds, a partner in White & Case, shows less than enthusiasm for the Commercial Court Long Trials Report and Recommendations in an article published yesterday on Legal Week’s web site. The Recommendations deserve more credit.

The article, headed Aikens misses the big picture, is a difficult one to rebut in that, whilst the overriding impression is one of disappointment, it is hard to see what Mr Reynolds would have had the Working Party come up with in its place. The committee, he says “was never going to produce a shiny new rule book”, yet he says also that “revision of the CPR is overdue”. He criticises the Recommendations as being “light on case management” but acknowledges that “the judiciary needs to be far more rigorous in the using the case management powers the rules contain…the deployment of [which] cannot be legislated for in the CPR” and adds that ”we must use this opportunity to overhaul the CPR and the way it is applied”.

So what are you saying here, John? Do we need new rules or just better use of the ones we have? Do the rules need an overhaul or not – if the problem is the better use of the existing management powers, and if they “cannot be legislated for in the CPR”, then what needs revision?

Marcus Evans conference – E-Discovery Strategies

A good e-Disclosure conference will make you want to know more or, at least, will ring an alarm bell in due course. There are pitfalls to know about and practice development opportunities being missed.

I am just back from a conference in London organised by Marcus Evans with the title E-Discovery and Document Management Strategies. The fact that I was one of the speakers does not disqualify me from saying that it was one of the best I have been to.

I will write separately about the session which I shared with His Honour Judge Simon Brown QC and which was, as you might guess, about the scope which the CPR gives to willing parties and an active judge to bring down the time and costs of e-disclosure.

Nor will I here try and summarise what each speaker said – it would be invidious to pick out any of them in what was a well-balanced programme, Actually, I will make one exception and pick out Browning Marean of DLA Piper US LLP, who displayed his usual knack of giving a near-universal viewpoint which transcends national boundaries and applies equally to large and small cases. It comes down to knowing your stuff and anticipating costs.

Predicting litigation responsibility for 2008

The big changes in litigation for 2008 both concern responsibility – the authority and knowledge of the person who gives the Disclosure Statement and the direct responsibility at boardroom level for the time and cost of heavy litigation. Both represent risks for corporate clients and opportunity for lawyers and for technology suppliers.

My 2008 predictions have already appeared on the Computers & Law web site. One of them is obviously a joke – no-one seriously expects the Government to honour its commitment to invest in the civil courts at the level warranted by their importance to a civilised society, and to the international business which they generate. We don’t expect New Labour to honour any of its other promises or obligations, so why pick on this one?

The others are no-brainers – judges will start making strict e-Disclosure orders, law firms will recruit home workers for e-Disclosure, and corporate clients will add e-Disclosure expertise to the list of skills they expect from litigation teams.