If it was slightly embarrassing to find myself the principal subject-matter of a speaker session at the IQPC Information Retention and E-Disclosure Management Conference last week, it is even more so to have the task of writing about it afterwards. But in giving over his speaker slot to a description of my e-Disclosure Information Project, Patrick Burke of Guidance Software neatly encapsulated the reasons why it is needed and why it deserves support, and it is perhaps easier to report what he said than to say it for myself.
It is also an opportunity to show that what is discussed at heavy-weight international conferences of e-Disclosure has a close bearing on what happens in UK courts and on what affects everyday litigation here.
I have reported briefly on the context in a separate post (see Guidance Software white paper launched at IQPC). The platform already held some of the main influencers.
Senior Master Whitaker has for many years ploughed a lonely furrow as almost the only judicial figure to argue consistently and continually that UK courts must use their powers to impose the efficient management of electronic sources of documents on parties (it is one of those curious paradoxes that most of the other strong judicial advocates of the use of modern technology in the courts – Bowsher, Cresswell, Brooke – are from a generation which has retired). Master Whitaker has a new spring in his step since he spoke at IQPC last year, reflecting the fact that the world is at last moving in his direction.
He paid generous and wholly justified tribute to his co-panelist HHJ Simon Brown QC, Designated Mercantile Judge at Birmingham, who has managed to get this subject on the agenda in the last few months, both by speaking about it and by practicing what he preaches in his own court. Regular readers will know that Judge Brown and I speak together where we can on the disclosure aspects of case management.
Moderating the judicial panel was Mark Surguy of Pinsent Masons in Birmingham. It was Mark who introduced me to Judge Brown, reckoning rightly that a judge who wanted to make his court an efficient and cost-effective place to litigate would team well with someone with a mission to promote e-disclosure. I first came across Mark at IQPC last year, where he was advocating the benefits to law firms of striking up pre-emptive relationships with suppliers against the day when they had to act quickly on a document-heavy matter
Also on the panel was US Magistrate Judge the Honorable Andrew Peck from the Southern District Court of New York, the court where Zubulake was heard. Look Judge Peck up and you find comments like “Normally moves cases along at blinding pace. He is graciously amenable to specific requests for more time to comply with, seemingly, fast-paced discovery schedules” and (in apparent contradiction of this) “Almost completely unwilling to extend any discovery deadlines, so you definitely have to front-burner any case you have assigned to him”.
A strong panel, then, and one whose comments are good to hear – unless, of course, you find yourself in front of them without having “front-burnered” your case preparation. I will report separately on what they said in their panel discussion.
Patrick Burke said that his programme was originally called “Implementing Defensible e-Disclosure Processes” which is what Guidance Software’s EnCase® eDiscovery does, but that he had decided instead to talk about the e-Disclosure Information Project. He was curious as to why English judges, with their wide case management discretion, did not invoke the rules which lay at their hands to compel litigants to comply with the e-Disclosure requirements. Part of the reason, he felt, was that their observation of the US experience had made them chary of the subject, seeing it as a Pandora’s Box best left closed. Mainly, however, he felt that UK judges had not been offered any help in understanding what was available as technological solutions to what was largely a technical problem.
That, Patrick said, was what the e-Disclosure Information Project had been set up to do. Its origins, he recounted, lay in an informal talk which I gave to the Mercantile Court Users Group at the Birmingham Civil Justice Centre in July 2007. That led to an invitation to spend an afternoon taking a group of judges through the relationship between the rules and the technology, and to subsequent talks by me and Judge Brown to West Midlands lawyers. These events, he said, were hosted by Pinsent Masons and sponsored by FoxData, and were the origins of the wider set of initiatives which were now in hand.
“The benefit of these sponsorships is that they fund Chris to take the time to work on the project at the expense of his practice. In terms of these sponsors, Chris notes that, in addition to financial support, sponsorship provides a pool of expertise and examples to draw on to illustrate what is involved in electronic disclosure and other aspects of efficient case management. We would encourage others to consider sponsoring this worthy project”.
I quote this because it captures very well the spirit behind the Project. Sponsorship connotes more than merely the purchase of the sponsor’s exposure, and involves an interest in the wider objective aims of the Project. Potential sponsors necessarily (and rightly) ask “What can the Project do for us?” Asking “What can we do for the Project?”, as Guidance has, implies a joint endeavour which is what I hoped for when I set it up.
I had declined a speaker slot when IQPC first asked me, preferring the role of discussion facilitator and a place on their Advisory Board. I now found myself at short notice with a microphone and an audience but no prepared speech and no slides except for a few hastily pulled from one of my seminar PowerPoints.
I said that I had written about the pivotal role of judges in managing disclosure in the first article I ever published on the subject, in February 1994. Nearly 14 years had elapsed before Mark Surguy introduced me to Judge Brown and gave me the opportunity to do something about it. It was, I said, a subject which lay at the junction of two technical subjects, rules and technology. Judges were given no training in the application of technology to the rules and the state provided no budget for it. This contrasted with Australia where, as Jo Sherman of e-Discovery Tools told us during the session, she had been funded by the Federal Court to work on the development of new practices and procedures.
It was a full-time endeavour which had no client and could not have happened without the support originally of FoxData alone and then of other sponsors. Its principal outputs are writing and speaking engagements – I have twenty or so of the latter booked for this year, including ten for the Law Society.
Much of it involved providing information on the status quo, pointing up the scope given by the existing rules in all courts and for all cases with any volumes of electronic documents, and disseminating knowledge about the solutions. There were, however, two developments in hand which would add significantly to streamlining the procedures. It was no coincidence that their progenitors were on the platform with me.
One was the technology questionnaire which Master Whitaker had asked a group of us (Vince Neicho of Allen & Overy, Mark Dingle of Simmons & Simmons, barrister Clive Freedman and me) to draft. Its purpose was to make parties set out what their electronic sources were before the CMC, so that the discussions required by paragraph 2A.2 of the Practice Direction to Part 31 CPR could proceed on an informed basis.
The other was a draft order for directions prepared by Judge Brown in Birmingham and subject (as he told us) to the requirement that it was generally applicable and not merely local to Birmingham. That included the same focus on the issues as was being imposed by the Commercial Court Recommendations, and an express requirement to discuss electronic sources of documents in terms which echoed (indeed, recited) the PD obligations. Once in the standard draft order for directions, it could not be ducked by parties or judge – it must be complied with or struck out if it did not have any relevance to the case. The important thing was that the subject should be considered advisedly.
I will report on the ensuing questions and answers in a separate post, along with those from the earlier judicial panel session.
Meanwhile, my thanks to Patrick Burke and Guidance Software for this boost to the Project’s profile, to FoxData for backing the original Judicial Training Project (within, I should add, 24 hours of my first meeting them), and for the sponsors who have come in since. Thanks also to Tyrone Edward, now at Ernst & Young, who first suggested the sponsorship model (in an e-mail which arrived in the middle of the night one Saturday, again after a single meeting) and so made it possible to devote time to it – pretty well all my time as it now turns out.
I learned during the conference that Anacomp, the owners of the CaseLogistix review platform, are going to join us as sponsors. 70 lawyers turned up for a Law Society seminar a few days ago, and there are nine more to go. Two firms of solicitors and a highly-regarded set of chambers got in touch within a few days of each other to ask me to give the same talk in house. 14 years after I first wrote about tighter judicial management of disclosure, we are beginning to see some movement.