Early case assessment still alive and well

One of the odder suggestions which I heard at CEIC 2010 in Las Vegas was that “early case assessment” was yesterday’s idea and that it was time to move on to the next one. On reflection, I decided that the speaker was talking marketing rather than common sense. He did not mean that we should stop making early assessments of cases, nor that we should consign to history the many excellent applications which have been given that label. He was just looking for a new catchy phrase.

Part of the problem, I think, is that its appropriation as a marketing label has buried the fact that early case assessment is a process not a tool. Those big shiny capital letters do not help, and I prefer to talk of “early assessment of a case” – less snappy, perhaps, but a better description of what we are trying to do here. The software applications (and there are, as I say, some very good ones) are an adjunct, and a necessary one, to an approach to the case which depends first on the sophisticated technology which lies between your ears.

The subject comes up because, within days of my being told that ECA was dead, George Socha and Tom Gelbmann have written an article for Law Technology News called Don’t Box ECA which sets out the components of a prudent assessment of a case to be made before e-disclosure / ediscovery begins. It is, if you like, an industry-specific variant on the old expression “time spent in reconnaissance is seldom wasted”.

Time spent summarising the article, on the other hand, would be time wasted, and I simply point you to it. My thanks to Rob Robinson of Applied Discovery who, as usual, had tweeted a pointer to it before the metaphorical ink was dry.

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Comment on Singapore Deutsche AG judgment

Vince Neicho of Allen & Overy saw my post about the Singapore judgment of Senior Assistant Registrar Yeong Zee Kin in Deutsche Bank AG v Chang Tse Wen and others (see Singapore e-Discovery judgment shows international commonality and active management) and has input which is worth passing on. Vince says:

How refreshing that, shortly following the Senior Master’s judgment on Goodale, another judge, Yeong Zee Kin SAR in the High Court of Singapore, has grasped control in an e-disclosure dispute to instil some common sense into the process.

As per usual, Chris has reported the judgment admirably, pulling out the pertinent information for us.  I write this commentary for two reasons:- the first is to rejoice that a judge has corroborated two points that I have been banging on about for years and, second, to seek, with respect, to suggest from a practical angle, that there was an alternative course open to the Yeong Zee Kin, that would have rendered the disclosure more useful in the long run and have resulted in significant cost savings.

Liverpool EDisclosure event on 3 June

The Liverpool Law Society is host to a three-hour course on electronic disclosure on Thursday, 3 June starting at 13.30 pm. The speakers include Professor Dominic Regan and me, together with litigation software supplier Epiq Systems and litigation services supplier Cats Legal.

The venue is the Second Floor, the Cotton Exchange, Edmund Street, Liverpool L3 9LQ.

The format and content are similar to that of the event at Ely Place Chambers last month – see E-Disclosure law, practice and technology in one educational package. Dominic Regan and I will talk about the e-disclosure implications of the Jackson report, the proposed new e-disclosure practice direction and questionnaire, including Master Whitaker’s judgment in Goodale v Ministry of Justice, and about the recent cases which bring this subject to the forefront for lawyers and their clients. The prediction which I made for the Society of Computers & Law at the turn of the year was that e-disclosure failures would become public and personal in 2010, with clients, law firms and individuals named in judgments in circumstances which they would rather avoid. That prediction is being fulfilled, and the penalties generally involve costs, including adverse costs orders. The two providers will explain what technology can bring to the exercise, and what types of software and services are available. The effect of this joint approach is that the interplay between rules, practice and technology will be explained.

Ediscovery cooperation: Give peace a chance

Having heard two US Magistrate Judges in two weeks emphasise that ediscovery co-operation does not require “sitting round a campfire singing kumbaya”, I was interested to see that CaseCentral has picked up the same theme in their latest Case in Point cartoon.

Many lawyers will say that such cooperation is “sleeping with the enemy”, that they feel that it conflicts with their duty to do the best for their clients, and that they cannot explain it to them. Sometimes, they may be right about this to some extent, however unmeritorious that may be, although, in the UK at least, such an approach almost always conflicts with their duty to the court and their obligations under the rules, not least in respect of the overriding objective.

There are only two possible remedies where there has been  non-co-operation: one is pre-emptive active management by the court, imposing co-operation by order; the other is punishment in costs. In the UK, this will usually take the form of recompense to opponents for money thrown away. A lot of this wasted money is down to ignorance rather than intent – ignorance of the rules or ignorance of alternative ways of addressing the volumes. The penalties are likely to be much the same, whatever the cause.

Ignorance inevitably involves no assessment of risk. Where non-cooperation is deliberate, however, the deliberations ought to include a calculation which balances  the perceived benefits (often the grinding down of a weaker opponent) against the risk of being caught and punished in costs. The cases suggest that the balance is shifting, as judges become more aware of their powers, of their duty to hold the ring between parties of differing resources, and of the alternatives which the oppressor might have adopted.

The Sedona  Cooperation Proclamation referenced in the cartoon can be found here. Give it a read before you next decide how best to serve your client’s interests in giving or receiving discovery.

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Cause and effect or why e-Disclosure is like cholera

“In Prussia the poor refused even to believe in the existence of cholera; noting that the eruption of the disease coincided with the arrival of doctors in their slums they drew the inexorably logical conclusion that the doctors had poisoned them.”

I am reading A N Wilson’s The Victorians from which this gem comes. How we laugh now that there should have been people so primitive that they should attribute their problem to those who come to cure it. It is a bit like people who blame the costs of electronic disclosure on those – judges and suppliers – who offer procedural or technical solutions to the problems.

Cholera was a new problem, first seen in India as a pandemic in 1817. Its progress round the globe can be charted from India to Eastern Asia to Persia and Russia until it reached Britain in 1837. The British epidemic of 1848-9 killed 53,000 people. The authorities were not keen to acknowledge that there was a problem at all and it  was left to private enterprise to show that the disease was not caused by smell itself but by the same things which caused the smells – a further muddling of cause and effect.

Clive Freedman e-Disclosure webinar

Barrister Clive Freedman of 3 Verulam Buildings gave a webinar on e-disclosure last week. Clive is a member, as I am, of Senior Master Whitaker’s working party which produced the draft e-disclosure practice direction and ESI questionnaire which were commended in his Final Report by Lord Justice Jackson. Those of us in the working party gratefully acknowledge that the brunt of the actual drafting fell on Clive. He has form in this area, having been heavily involved in the work of LiST, the Litigation Support Technology Group, in its draft PD and e-disclosure protocols.

I was in Las Vegas when the webinar was delivered – that itself is not a bar to attending (or delivering) a webinar, one of the joys of the format, though I could not in fact do so on this occasion. Mike Taylor of I-Lit did listen to it, however, and sent me this report: