Vector Investments: successful claimant made to pay for unhelpful disclosure

Is quite rare to come across UK cases where the quality and costs of disclosure become the subject of a reported judgment. In rare cases such as Digicel, Earles or Goodale, disclosure is either the primary subject-matter of the judgment or is a sufficiently important part of it that (if the judgment is reported at all) we get to hear of it.

Judgments must, in fact, be made every week which record adverse comment, or adverse costs orders, against a party which has failed to comply with its disclosure obligations. Whilst these are often to do with under-disclosure (that is, a failure to disclose that which ought to have been disclosed) it is just as important to know of cases where one party imposed an unnecessary burden on the other by over-disclosing or by the manner in which the documents were presented to the other side. The only reported case I have ever come across on this pre-dates the 1999 rules and, indeed, the days of electronic documents.

Vector Investments v Williams [2009] EWHC 3601 (TCC) (05 November 2009) is of the latter kind. I conclude from the references in it to “files” that disclosure was given on paper, which itself raises questions, but not those which came up between the parties. It is a judgment of Mr Justice Ramsey in the Technology and Construction Court. The main interest as to costs generally lies in the judge’s consideration of the liability for costs following a compromise and a Tomlin Order. The only outstanding point for determination was the assessment of costs, and the judge felt obliged to consider the whole subject of the principles applicable to assessment of costs. You can get the flavour of it from a sentence in paragraph 71 which reads “How should the court approach cases where a claimant has made offers which do not comply with Part 36 and which have been beaten by the claimant as a result of settlement?”.

New e-Disclosure articles on the SCL website

The website of the Society for Computers & Law has two new articles about electronic disclosure.

One is by barrister Clive Freedman of 3 Verulam Buildings and is called Disclosure: the Proposed Rule Changes. It summarises succinctly the elements in Lord Justice Jackson’s Final Report relating to disclosure and to electronic disclosure – I make that distinction because the labels serve to separate the principles which apply to the scope of disclosure and the court’s role in managing disclosure (on the one hand) from the elements which relate specifically to the disclosure of electronic documents (on the other). In practice, since the vast majority of documents to be disclosed are electronic, this distinction may seem unimportant. Lord Justice Jackson, however, treated them under separate headings and, for the moment at least, discrimination between the “what” and the “how” is a useful one, although they are, of course, interlinked – the third question “how much?” introduces cost into the equation, as proportionality demands that it must.

Stratify and CaseLogistix manage e-Discovery for the Valukas report on Lehman collapse

I am reasonably sure that I will not find time to read the 2,200 page Valukas Report on the collapse of Lehman Brothers. Fortunately, Gregory Bufithis of The Posse List has extracted from it the description of the electronic discovery exercise which Anton Valukas, the examiner appointed by the U.S. Bankruptcy Trustee, undertook in the preparation of his report (see The Valukas Report on the Lehman Brothers collapse and e-discovery — Stratify and CaseLogistix win the day .

The chief interest to me, apart from the staggering volumes of documents involved (to say nothing of the 2600 software systems and applications in use at Lehmans) is that two of the e-Disclosure Information Project sponsors, Stratify and Anacomp’s CaseLogistix, emerged as the systems of choice for the investigation. More than 70 contract attorneys, in addition to lawyers from the retained law firms, conducted first first-pass reviews using these two systems.

Welcome to Recommind as a sponsor of the e-Disclosure Information Project

It is very good to be able to extend a warm welcome to Recommind as a new sponsor of the e-Disclosure Information Project. As the focus for e-Discovery / e-Disclosure turns increasingly on to the way companies collect and manage data on their own systems, the addition of a provider who embraces enterprise search, e-mail management, records management e-Discovery and compliance is both appropriate and timely.

Recommind’s roots are in enterprise search. MindServer Search brings user-based relevancy tuning, that is, result sets which are boosted by input from the individual profile of the user. It also allows federated search, the ability to search across internal and external data sources with a single query. The result of indexing information from document management systems, intranets, contact management databases and websites are “concept models” which rank search results by relevance.

Welcome to H5 as a sponsor of the e-Disclosure Information Project

It is a great pleasure to be able to put up the logo of information retrieval company H5 as a new sponsor of the e-Disclosure Information Project. I described H5 in a recent article as “a cross between a commercial information consulting business and a research university” one which, I said, lays as much stress on its high-calibre people as it does on the services and software which comprise its offering to clients.

My connection with H5 goes back to my first foray into the US litigation world, at LegalTech in 2007. I went there because it had become obvious that a half-understanding of US e-discovery was acting as a brake on the UK use of electronic means to tackle electronic documents. The UK alternative was simply to ignore the fact that 90% of communication between businesses is electronic, and to take refuge in the assertion that electronic discovery was something Americans did, and did both extravagantly and expensively. Whilst we still suffer from that amongst the backwoodsmen of UK litigation, we are eroding it and replacing the image of US providers as all “Texans with tall hats” (as one of them once put it to me) with the reality of intelligent people trying to solve much the same problems as our own.