Law Society Seminar – Disclosure – the risks after Hedrich

I spoke yesterday at a seminar organised by the Law Society and sponsored by Legal Inc and Millnet. The theme was as foreshadowed in my article Law Society Disclosure Seminar in London and was implicit in the name I gave it: Disclosure – the risks after Hedrich.

The title referred to Disclosure rather than e-Disclosure because the electronic side to this subject is servant to the primary obligation to give disclosure of documents under Part 31 CPR. It referred to Hedrich because although the solicitors in Hedrich v Standard Bank London were found not to have been negligent, and beat off the wasted costs application brought against them, I am not sure I would count it much of a victory to have had to come off the record in mid-trial and then go all the way to the Court of Appeal to fight off the claim that my failure to spot my clients’ disclosure failings had caused loss (and how) to the other party.

I challenged, as I have done in these pages, the Court of Appeal’s rather strange suggestion in Hedrich that you don’t expect too much by way of competence from High Street solicitors in this area. The precise words, in paragraph 67 of the judgment, were

We have to judge negligence by the standards of a solicitor of ordinary competence, the competence, that is, of a typical, reasonably well-informed high street solicitor, just like Mr Zimmer, not the Rolls Royce standards which the big City firms like Jones Day must and do uphold. In my judgment it exceeds the required standard of care to be taken in these circumstances to expect a solicitor to challenge the assertions, at first that the e-mails had been lost and later, that the e-mails in fact recovered by Mr Kaul, were all e-mails of relevance to the litigation.

There is good reason why some cases go to very big firms, but basic competence in disclosure is not one of them. If you divorce the Court of Appeal’s assertion from the facts of this case (that is, form no judgment on this particular solicitor) you are left with the broad proposition that “a typical, reasonably well-informed high street solicitor” may be excused from challenging his own client’s disclosure or judging relevance. If he cannot do that for his own client, how can he be expected to challenge their opponent?

It is not, on the whole, the big cases with grand solicitors which break new legal ground – the important cases in English law are about dead snails, influenza remedies or flooded mines. A small firm of solicitors can instruct a barrister with specialist skills and give itself a reach well beyond its size. The same is true of handling electronic documents – there is a choice of experts offering services in this area and they can be made part of your team with a phone call. They may give you advice for a few hundred pounds which heads off a Hedrich-type situation, or you may delegate the whole of the mechanical side of document-handling, leaving yourself with the legal input for which you are qualified. That gives a small firm the ability to take on work which it might otherwise have to surrender or, worse, take on and botch.

My talk began with the rules. I have rewritten the central section in the light of last year’s three big cases (Digicel v Cable & Wireless, Abela v Hammond Suddards and Hedrich v Standard Bank) because it is no longer necessary for me merely to assert that courts will take a close, hands-on approach to controlling disclosure. My own words are otiose when I can point to judicial pronouncements firmly grounded in the rules which cover precisely the same ground.

Take this, on the subject of keywords, from Digicel (paragraph 94):

My earlier conclusions mean that I have determined that the Defendants did not carry out an adequate search first time round. Further, the Defendants acted unilaterally in this respect and did not follow the advice given in Part 31 Practice Direction as to co-operation with the other party to the litigation, in advance of the search being done.

One might quibble with the word “advice” – Practice Directions may not be rules, but you can be struck out for failure to comply with them. Paragraph 2A.5 of the Practice Direction to Part 31 (which is what the judge is referring to) uses the expression “it may be reasonable” but that is part of the definition of a duty, not mere advice. The point is, though, that this short paragraph could usefully be stuck on a notice-board above the desk of anyone embarking on a disclosure exercise, with the words “adequate”, “unilaterally”, “co-operation” and “in advance” underlined in red.

If these cases provided me with illustrations for my opening section about the rules, they also provided a context for the later section about the technology. Keywords, I said, were not the only way to cull and filter document collections, and I showed examples of other tools – Autonomy’s clustering, Equivio’s near-duplicate grouping and e-mail threading, for example. We looked at the source of rows and columns of data – the last-saved date and author of a Word document, the raw information which Outlook dresses up in a pretty screen form, and (more obscurely) the tracking information in a received message. This information could appear in an Excel spreadsheet, in an affordable desktop tool like CaseMap, or in a big review application – the functionality and the cost varied but the core data was the same. You cannot assert that this is too expensive, I said, if you do not find out what the comparative costs were. Digicel and Abela saw the courts showing a close interest in the balance between outlay and benefit and in the minutiae of the search methods (see, for example, Digicel at paragraph 72 et seq).

It is not easy to get the right balance in this kind of tour d’horizon. There is no doubt that it is a scamper to get through it in two hours – slightly less in fact since I was keen (following my events in Birmingham and Bristol) that the audience should see what these applications could do and Millnet and Legal Inc briefly did just that.

What are the alternatives? I could cover less ground, run for three hours instead of two, or speak even more quickly. I have some sympathy for anyone who says that two hours is a long time to sit and listen, but audience inter-reaction does not work at these events where people come from a range of firms (I have tried it). I could not get anyone, for example, to admit that they had even heard of the Practice Direction to Part 31. I once gave a break half-way through, and someone whinged that I had done them out of ten minutes.

The other issue which can arise is the suggestion that vulgar commerce has no place alongside the purity of the law – it is not put quite like that, but that is what is meant. I am, as I always say at the beginning of my talks, completely uninhibited about showing real products designed to solve real problems. The difficulty lawyers face is knowing that these solutions exist. The Court of Appeal in Hedrich referred, as I have said, to “a solicitor of ordinary competence, the competence, that is, of a typical, reasonably well-informed …solicitor”. You cannot be ”reasonably well-informed” if you do not know that applications exist which take the time-consuming slog out of ploughing through documents. What I do is take the time-consuming slog out of identifying some names to contact by listing pretty well all the major supplier names operating in the UK.

In much the same way, I take the slog out of reading the cases. There are 26 pages in Digicel, 25 in Hedrich and 70 in Abela. The extracts which I provided are of the same kind as the screenshots of actual products – a short ramp to understanding, or at least to knowing what is out there.

My thanks to Aisling McDonald at the Law Society for the arrangements and the venue and to Legal Inc and Millnet for their sponsorship. I am, of course, happy to deliver the same talk, or a variant, to law firms and others who prefer to stay in their own offices.

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