Senior Master Whitaker raises the eDiscovery stakes for unprepared litigants

You are busy, I know, and here is another 3,000 words to read. I will repeat here at the top the paragraph with which this article ends, as a taster for what Master Whitaker said in his plenary session speech at the Singapore International Conference on Electronic Litigation.

If Master Whitaker’s opening premise was that businesses are concerned about the costs of discovery, the real concusion from what he said is this: however important the role of judges, whatever is provided as rules, practice directions and court guidance, and however good the technology becomes, the key lies with the clients, both in the way they keep – and destroy – their documents, and in how they select and instruct their lawyers.

Senior Master Whitaker’s talk was headed International Developments in Electronic Discovery. In introducing him, Nicholas Peacock of Herbert Smith referred to Master Whitaker’s other formal title, the Queen’s Remembrancer. That role, he reminded us, was established in 1154; how interesting, he said, that the oldest judicial post in England and Wales should now be at the “cutting edge of bringing technology into the law”.

It is conventional to be polite to your hosts on such occasions, but Master Whitaker clearly meant every word of his opening. Singapore, he said, was a member of a select club of jurisdictions requiring common-law discovery, and punches above its weight in electronic discovery, as appears both from its practice direction and from various decisions. He praised its “forward-looking Chief Justice” (see my post Opening a world class agenda at Singapore Electronic Litigation Conference for a report of the latter’s speech). “Majulah Singapura”, he said, this being Malay for “Onward Singapore”, the nation’s motto. He paid tribute to Senior Assistant Registrar Yeong Zee Kin for his part both in advancing the court processes in Singapore and for his role in organising the conference.

He was, he said, proud of the connection between the Queen’s Bench Division and Singapore which, he said, would continue for as long as he was Senior Master.

I recite all this, not merely for local colour, and certainly not to pad out an article which will be quite long enough as it is, but to emphasise that there is a genuine warmth and friendship between these two jurisdictions and, more importantly, between the people who do the moving and shaking in relation to litigation processes, including eDiscovery. It will be clear from what I have written in other articles that we have much to learn from, as well as something to give to, the jurisdictions which face the same issues as we do. This formed no part of Master Whitaker’s talk, but Singapore is one of the “Asian Tigers” whose population of just over 5 million imported US$351,200 million in 2010 and exported US$315,600 million. It is not just a shared common law tradition and personal bonds between judges which make this an interesting and important country.

Master Whitaker began conventionally enough by asking rhetorically why the study and practice of electronically stored information is so important. It was easy to say that we must control disproportionate costs, he said, and that the extent of a reasonable search was affected by the multiplicity of sources, formats and locations, by duplicates and similar factors. It was important, however, he said, in a second sense as well: civil jurisdictions around the world were put at risk by challenges to their ability to manage discovery.

To those of us who share this heritage, discovery is seen as indispensable to justice, but it is hard to say that the justice of civil jurisdictions is inferior to ours. There was a time when common law countries dominated trade and business, but that time is going, if not gone. Korea, for example, had adopted a variant of the German civil law system, and three Korean judges had visited him in order better to understand the common law discovery system; they had gone away, he thought, convinced that they had opted for a better system.

Costs and lack of predictability are of deep concern to business, Master Whitaker said. Are there answers beyond the usual ones about case management and judicial training? We conventionally focus on rules and practice directions, but he wanted to provoke thought about encouraging other solutions and to dispel the idea that we must always be firefighting. The problem can only get worse as everyone turns to electronic documents and it is worth considering if we can do more than simply create mechanisms in our rules to try and manage this. The court should be looking to encourage a different culture, especially amongst those who know well that they will have to litigate.

Master Whitaker made five broad points:

1 It is not inevitable for businesses to throw up a mass of documents for opponents to review

He said that when he started talking on this subject in 2005, the area was dominated by software designed to sort and manage documents as they were created; the emphasis has now shifted to “handling the mess”. In a well known example, he said, DuPont had discovered in retrospect that 50% of the documents reviewed by lawyers in a case should have been deleted under their existing document retention policies. Perhaps the courts should be less sympathetic when they discover that parties have done nothing to mitigate costs of this kind. The UK case Earles v Barclays Bank, a judgment of HHJ Simon Brown QC, showed the court willing to punish in costs a party whose disclosure showed a lack of litigation readiness.

2 Courts need to scrutinise document retention policies more closely

Document retention policies should really be called “document destruction policies”. UK companies had the additional incentive for destruction that EU privacy rules required them to delete documents (or, at least, those containing identifiable personal information) which were no longer required for the purpose which they were created.

We did not want to go down the US route where threat of sanctions had encouraged over-disclosure. The courts need to stress the importance of having a reasonable destruction policy. Businesses need to keep less not more, and to work towards being able to show that deletion deadlines were reasonable and defensible.

3 The unwarranted assumption by parties that documents are easy to hide

This under-estimates, Master Whitaker said, the power of modern software to find the documents which matter. Parties feel that they need to go to extremes to ensure that every document was not overlooked when technology offered a proportionate alternatives.

In the old days, a warehouse full of files usually had to be searched through because that was the only way to do it. Now, he said, we can use software to eliminate much irrelevant data before you start. Instead, he said, people print millions of documents – they come before him and says that that is what they intend to do, without any idea either of the costs or that there are alternative ways of doing it.

We cannot go on with the old methods of searching, Master Whitaker said. The class of software known as predictive coding should, he said, be easily defensible even if 60% of the documents are never read.

[This is apt to be misunderstood, a point which Master Whitaker makes often in this context. No one is urging lawyers to give disclosure of material they have not read. The key is the exclusion of documents which no-one needs to read because their file type, date, custodian or contents, or the existence of duplicates or near-duplicates, takes them out of the scope of a reasonable search and/or makes it disproportionate to consider them]

He said that he was well-known as a critic of the use of keywords or, at least, of the uncritical use of keywords on their own. Predictive coding was misunderstood by lawyers who feared that they may miss something whilst simultaneously making the generally unwarranted assumption that they would find more by traditional methods. Any system which can help to prioritise the document collection ensures that the effort goes into reading those which actually matter. Technology of this kind put at the front end of the process those lawyers who understood the issues in the case.

Use of such technology does, of course, raise the possibility that opponents will challenge your methods, and that arguments will arise in consequence as to whether the training process was work-product and so not open to inspection. If he were imposing a protocol, Master Whitaker said, it would require both parties to be involved in training so that there can be no criticism of the method used.

[Those who think they have read something else like this here recently are probably thinking of my article Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat. I was present at a panel in New York last February where Master Whitaker and US Magistrate Judge Andrew Peck fell into dispute with a lawyer who said that he would never involve his opponents in this way – “to a certain extent inviting them to a seat at the table” as Judge Peck put it at Carmel. It is right to say that some clients really do want their lawyers to fight like terriers at every ditch; many more, perhaps, would prefer their litigation to be affordable. You cannot have both, and it is increasingly the courts' role to direct and to punish where unreasonable behaviour has exaggerated the costs beyond what is reasonable.]

4 US Magistrate Judge Peck had argued in a recent article that litigants and parties should approach cases differently, depending on the case

The article in question is one written jointly by Judge Peck and David Lender and was published by Huron Legal with the title 10 Key eDiscovery issues to watch in 2011.  The sentence referred to reads:

Litigants and courts should approach discovery differently depending on what is at stake in the case, and how complex the issues are expected to be.There simply is no reason in most cases to produce thousands upon thousands of documents from dozens of custodians, simply because they have touched an issue, when the dispute really centers around a handful of key players who will have most (albeit not all) of the documents that are potentially relevant to the case.

This, and the idea of cooperation, also referred to in the Huron paper, was at the heart of the English practice direction, Master Whitaker said. The approach may be a robust one, and is sometimes rough and ready. Turning over every stone is no longer possible or proportionate. Although this approach may fail to find the so-called “smoking gun”, we must have justice at a proportionate cost and not at any cost.

[It is worth observing that Master Whitaker's words in this context match almost verbatim part of paragraphs 44 to 55 in a Court of Appeal decision called Nichia v Argos. The paragraphs are the source of much good sense on this subject, notwithstanding that Lord Justice Jacob, whose words they were, was in the minority of the Court of Appeal.]

5 Parties are still searching large volumes of documents “on their own in sealed compartments”

Costs can be substantially reduced if parties discuss and try to agree the scope of the search before undertaking it, being ready to take the matter to the court if necessary. Every litigant should be aware of the Sedona Cooperation Proclamation. There was an expectation on the part of the court that the parties will try to reach practical agreement.

With those points made, Master Whitaker moved on to the UK practice direction, wider observations on the discovery process, the role of the court, and developments in oher jurisdictions.

The eDisclosure Practice Direction and Electronic Documents Questionnaire

[A new eDisclosure Practice Direction came into force in the UK on 1 October 2010. It incorporates an Electronic Documents Questionnaire to be exchanged by parties in certain cases. Master Whitaker led the working party which drafted these documents; I was a member of it]

The practice direction requires parties to discuss the use of technology in the management of electronic documents and their disclosure. It comprises, Master Whitaker said, a “pretty detailed road map for how to discuss disclosure”. A party who did not comply by having meaningful discussions may be made to repeat its searches.

The focus was on primary sources of reasonably accessible data; if the data is not reasonably accessible then the party proposing its disclosure must demonstrate the value of the cost and burden of retrieving it.

Parties should consider other methods of search beyond keywords, which had the potential either to miss documents or to produce too many. Master Whitaker found that his own challenges to keywords lists which were overlong or otherwise inadequate often resulted in blank stares from the often quite senior lawyers who appeared before him.

The essential point about the questionnaire, he said, is that it is a sound checklist. A “responsible non-negligent lawyer would have addressed these points anyway”, he added. The practice direction, as well as common sense, urged consideration of a staged approach by which parties may decide that they will have a narrow starting point in the hope that that would suffice. We “do not want a US-style wide collection exercise”, he said

[Judge Peck makes a similar point in the Huron paper already referred to - the paragraph about "phasing discovery" on page 2.]

The questionnaire seems to be working well and anecdotal evidence is that it is being used even where it is not formally required and is being found helpful. There is not much evidence of its misuse, that is, where an overbearing party makes threats as a tactic based on alleged inadequacy of the opponent’s answers.

[The point here is that a party who has grasped the mechanics of completing the questionnaire but missed its spirit and purpose might use alleged deficiencies in its completion to bully an opponent who was less well prepared. It is for the judge to watch out for and control this.]

The process misunderstood

Master Whitaker said that there is still a tremendous amount of misunderstanding as to what electronic disclosure is. Many lawyers and judges still assumed that it is merely a method of disclosure, simply a different way of giving the same disclosure as we used to give. Amongst the things missed along the way were the centrality of the scope of a reasonable search. People fail to understand the ability – indeed, the obligation – to consider date ranges, custodians, and the elimination of marginal material at the collection stage; they were not making use of technology to eliminate duplicates and near-duplicates and to reduce duplication by the use of e-mail threading technology. There are also examples of total failure to test what the outcome would be of a search and to document how a result was arrived at.

Parties come before him protesting at the size of the task without having done any of this and unable to give the judge any idea of the true scale. The proper course is often to send them away, telling them to come back with a proper answer.

There was, he said, over-reliance on human review where it should be obvious that the volumes must be trimmed, and duplicate and relevant information removed before anything is printed (if it needs to be printed at all).

What is the role of the court?

The court must be put in a position to stand back and make proportionate decisions. This was easy enough to do with hindsight, but he as a judge wanted to “get a gauge on proportionality” before he started. The court should always be asking if there was a better way to address the problems. Disclosure applications, and especially those for specific disclosure, were, he said, an “excruciating process for a judge” and should be unnecessary.

Returning again to the Huron paper, Master Whitaker referred to the extract from Judge Peck’s William A Gross case set out on page 3 – the “wake-up call to the bar” section about the need to “carefully craft the appropriate keywords” and for the methodology to be quality control tested to assure accuracy in retrieval and elimination of false positives. That section went on to refer to “more sophisticated search tools”. In the case of disagreement between parties, Master Whitaker said again, it was for the court to rule about the use of tools like predictive coding.

Other jurisdictions

The Australian Law Reform Commission had issued a comprehensive report. They had collected empirical evidence about the costs of discovery relative to overall costs. Discovery plans were recommended in a form similar to the UK questionnaire. The paper included a welcome recommendation for judicial education and training, and proposed amendments to the rules covering, in certain circumstances, that some or all of estimated costs be paid up-front, for security for costs and for caps on maximum costs recoverabiity. The report showed a deep appreciation of the problems and how to attack them.

New Zealand similarly was tackling disclosure issues. The common theme was a presumption in favour of tailored discovery and for some form of discovery checklist.

Conclusion

Master Whitaker said that these jurisdictions share a common law heritage and faced the same problems. Whatever the jurisdiction, the approaches were broadly the same:

  • To encourage better information management in companies rather than merely deal with it after the event
  • Parties must better appreciate that the costs of disclosure may be severely limited
  • Co-operation was essential
  • Discovery must be tailored to the circumstances

Overall, he said, the courts should be more willing to impose penalties in costs for shortcomings in disclosure. This goes beyond punishment for failure to disclose relevant documents and extends to reigning in costs for excessive disclosure.

If Master Whitaker’s opening premise was that businesses are concerned about the costs of discovery, the real concusion from what he said is this: however important the role of judges, whatever is provided as rules, practice directions and court guidance, and however good the technology becomes, the key lies with the clients, both in the way they keep – and destroy – their documents, and in how they select and instruct their lawyers.

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