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

It is a great pleasure to welcome Symantec as the latest addition to the sponsors of the e-Disclosure Information Project.

Earlier today, in my article about Canadian e-discovery (see Lessons from Applied Discovery Proportionality panel in Toronto ) I passed on this advice from the panel there:

A large organisation will not be able to say any more “we cannot restore it because it is not proportionate”. That is like saying “we decided not to keep a filing cabinet”. One should not run proportionality arguments about something one could easily have done. One will not be able just to say “I cannot find them in this morass” because the court will say “You are expected to have a system for this”

I then pointed out the similar message from what I see as the most important section in HHJ Simon Brown QC’s judgment in Earles v Barclays Bank (a message which does not, of course, apply only to banks) :

One expects a major high street Bank in this day and age of electronic records and communication with an in house litigation department to have an efficient and effective information management system in place to provide identification, preservation, collection, processing, review analysis and production of its ESI in the disclosure process in litigation and regulation.

This is exactly where Symantec sits in the discovery process with its well-known Enterprise Vault, whose web page  says that it:

enables users to store, manage, and discover unstructured information across the organization… and … helps customers deduplicate information at the source to reduce costs, delete information confidently and discover information efficiently.

… and that its  Discovery and Search functions give

roles-based access for legal users to search, preserve, review and export electronically-stored information efficiently.

This is exactly what is meant by those who argue that the key to e-discovery lies in the way an organisation looks after its own data. If as a software company you already take responsibility for the archived content – the e-mail, electronic files, SharePoint, instant messaging and databases – of many of the world’s largest corporations, you have an obvious role in the e-discovery process, for the reasons given in my quotations above.

Symantec has recently concluded a survey of 5,000 EMEA lawyers and legal professionals, both in-house and external, across 10 countries. I have not absorbed it all yet, but the conclusion which stood out for me is that there is still a very large gap between respondents’ top-of-the-head reaction to questions about their preparedness and the reality once their detailed answers are analysed. This is consistent with the results of surveys by, amongst others, KPMG and Recommind over the last twelve months. One might have hoped that the interim would have seen either a less confident anecdotal reaction or (and preferably) evidence of movement within companies to tighten up their systems and to have in place the “efficient and effective information management system” referred to by Judge Brown in the Earles decision.

I look forward to learning more about Symantec and Enterprise Vault. Meanwhile, for the reasons given above, they are a welcome addition to the e-Disclosure Information Project.

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Berezovsky v Abramovich – refusal of enhanced disclosure order in the Commercial Court

A decision about edisclosure made in the Commercial Court by Mrs Justice Gloster DBE in August has recently been published on BAILII. The case is Berezovsky v Abramovich , the pleaded sum at stake exceeds US$3.5 billion, and the allegations made by both parties are serious ones of dishonesty and impropriety. The application was made before standard disclosure had taken place for what is variously called “train of enquiry” or “Peruvian Guano” disclosure, referred to by the judge as “enhanced disclosure”. No formal application was in fact made and no evidence was filed either in support or in answer. It seems unlikely that the judge would have reached a different conclusion if such evidence had been before her, although her rejection of the application was based in part on its lack of particularity.

The judge did, however, helpfully set out the sort of evidence which a court might expect on such applications, namely:

• i) what documents or categories of documents might be regarded as liable to be searched for, or disclosable, in accordance with standard disclosure procedures;
• ii) what wider or different categories of document would have to be searched for if an order for enhanced disclosure were to be made;
• iii) any indication as to the nature of the searches that would have to be carried out, or the extent of the relevant universe of documents, if an enhanced order were made, or the difficulties, if any, that the conduct of such a search would impose on the parties; and
• iv) any indication of what inquiries, in relation to which issues, such an order for disclosure would require.

The judgment is short and I will leave you to read the arguments for yourself. The key points, to my eye, include the following:

Lessons from Applied Discovery Proportionality panel in Toronto

It sounds a bit flippant to say that I went to Toronto for breakfast. It certainly would not do as an answer to the immigration official asking the purpose of my visit. Readers with long memories may recall two earlier occasions when I nearly made it to Canada and failed. Since then, I have been back to Australia, and spoken in Singapore and Hong Kong, leaving Canada as a big gap in my close-up view of the common law jurisdictions which require discovery of documents in litigation (the other gap is New Zealand, which I hope to remedy soon). I jumped at the chance when Applied Discovery invited me to a breakfast panel session in Toronto called Understanding Proportionality.

The moderator was Crystal O’Donnell of Applied Discovery, whose white paper entitled Proportionate Litigation was launched at the event. What you need to know from that, by way of introduction, is the new Rule 1.04 s 1.1 which took effect on 1 January and which says this:

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

If you are tempted to think that this is just a statement of the obvious, you may care to read the 17 pages which Lord Justice Jackson devoted to the subject of proportionality in his Final Report on Litigation Costs starting at page 27. He says this (at paragraph 5.16) à propos his proposed changes to the UK rules:

“The rules should also provide that the fact that costs were necessarily incurred does not make them proportionate. This should be stated explicitly….”.

Once you see a distinction between costs “reasonably incurred” and those which are “proportionate” you see more to proportionality than merely being reasonable.

Crystal O’Donnell had assembled a first-rate panel. Master Calum MacLeod of the Ontario Superior Court of Justice occupies a position as judicial thought-leader equivalent to that of Master Whitaker in the UK. Kelly Friedman of Ogilvy Renault is Chair of Sedona Canada. Susan Nickle is from Wortzman Nickle a specialist ediscovery practice which describes itself as “the go-to law firm in Canada, assisting corporations and their counsel to find practical ways to meet their ediscovery obligations”.

One of the themes running through the session was the need to find the “golden nuggets”. I propose to adopt the same approach to reporting on the session, picking out, without attribution, the passages with the widest general application. Unsurprisingly, they are ones which recur in every relevant jurisdiction.