The first of the E-disclosure seminars organised jointly by Professor Dominic Regan and me took place yesterday at Ely Place Chambers. Dominic and I were joined by Senior Master Whitaker and by speakers from three technology providers, 7Safe, Legal Inc and FTI Technology to bring together the law, the practice and the technology in one afternoon session.
The expressed rationale for the e-Disclosure Information Project is to bring together all those with an interest in making electronic disclosure efficient and cost-effective. That crossover is important - knowledge of Part 31 CPR and its practice direction is a good start, and the increasing number of cases involving e-disclosure failures send a strong warning to lawyers. Lord Justice Jackson drew attention to the need for more active case management by judges, and the proposed new practice direction and ESI Questionnaire raise the temperature on that front. Meanwhile, the technology reduces in cost as it increases in capability and, if properly used, maps well to the steps which parties and the court must take together, first to decide on the scope of disclosure and then to achieve it. The case management itself must be proportionate to what is involved.
I have never felt the slightest inhibition in introducing technology suppliers into these discussions. If I needed any encouragement, which I do not, I get it from what Lord Justice Jackson said in his Final Report about the value of seeing technology and about the contribution which can be made to education by those whose business involves providing it. He said this:
I am bound to say that the systems developed by each of those specialist providers are extremely impressive. I am sure that it would assist other members of the judiciary to know what technological help is available to the parties, to enable them to manage the disclosure process.[Para 2.2 on page 365]
The important point which has been stressed by many respondents is that judges, solicitors and counsel need to acquire (or have access to someone who has) a much more detailed understanding of the technology available and how it functions. Both practitioners and judges need such an understanding, so that the court can manage the litigation properly and keep the costs of e-disclosure within sensible bounds. As is pointed out in one of the Phase 2 submissions, lawyers need both education and training in respect of e-disclosure. They need education in the broad capabilities of the ever developing software systems and in the variables which make one software system different from another. They also need training in how to make the best use of whatever software systems are adopted. [Para 2.8 on page 367]
Dominic Regan is the best known educator on Black Letter Law, valued as much for his manner of delivery as for the quality of the content. After a brief introduction from me, he took us quickly through the implications of Jackson and a couple of cases. Some of Lord Justice Jackson’s recommendations (there are apparently 210 of them are) will fall by the wayside, principally those with deeper implications affecting primary law and those which are very contentious. The approach taken in the report, however, has the backing of the senior judiciary and, in the run-up to the election, the Conservative opposition spokesman had expressed support for it.
Dominic highlighted Digicel and Earles v Barclays as the cases likely to have the deepest effect on practice. The previous day’s abandonment by the OFT of the BA-Virgin price-fixing trial showed the importance of competence in the mechanics of handling electronic documents.
I picked on the Al-Sweady case as a model for how not to do it. A party (in this case the government) which reiterated its view that it had no further documents to disclose, but then announced that it had too many to handle, and which was stung for £1 million in indemnity costs for its conduct of disclosure, clearly had some work to do on its whole approach to document management and case management.
Adam Page and Stuart Clarke of 7Safe took us through the mechanics of forensic data collection. Lisa Burton and Lee Reason of Legal Inc explained the consultative role of a general purpose litigation supplier. Craig Earnshaw and Nick Athanasi of FTI Technology concentrated on the software applications which FTI brought to processing (Attenex) and document review (Ringtail Legal), setting the capabilities of these applications into the context of the task which lawyers must undertake.
One of the questions from the floor (and it was a feature of this session that we had good interaction with the audience) concerned the overlapping functions of different providers. This is, in fact, one of the reasons why I take multiple players to these events – it is hard for potential clients to decide which door to go through. 7Safe’s roots are in data collection, but it has moved rightwards through the EDRM to include processing (with Nuix) and document review (it hosts CaseLogistix); its collection services can, however, stand alone ancillary to the processing and review capabilities of other providers. Legal Inc‘s focus may be on its consultancy, but it does hosting and processing (e.g. with Digital Reef) and will advise as to the most appropriate review platform. FTI Technology is part of a worldwide consulting company which owns market-leading applications (Attenex and Ringtail Legal). One of the purposes of assembling these apparently disparate but overlapping providers is to emphasise that they co-operate amongst themselves and are used to working together.
Master Whitaker and I rounded off the day with a survey of both the procedural scene (Jackson, the proposed Rule 31.5A “menu option”, the practice direction and ESI questionnaire) and other cases, not least Goodale which I described as “the template judgment for case management”.
Dominic had to leave early for urgent personal reasons, but this session set the mould for what we hope will be a series. We are due in Liverpool on 3 June and will assemble a different team of suppliers with the same purpose of integrating the law, the practice and the technology. One of the messages is that this is not all risk and disaster-avoidance. There are opportunities here for firms, and by no means only big firms, to move into this space and become expert at it. What makes this possible is the ability to integrate the technology suppliers into the process, passing them those parts of the job which the lawyers cannot do, or cannot do cost effectively. Cases show that this is no longer optional, and we might as well make a virtue out of it.
My thanks to Ely Place Chambers for hosting the event and for providing both refreshment and an opportunity for audience and speakers to mingle afterwards. Contact me or Dominic Regan if you are interested in a public or private repeat of the session.