Disclosure and eDisclosure – filming a video primer with Dominic Regan

I took part in a video webinar with LexisNexis this week, part of their rolling programme of Butterworth’s Dispute Resolution webinars.

The key fact which I want to put right at the top of this article is that 2,340 viewers from 85 firms registered to watch this webinar, either live or by downloading it across the year. There is the CPD bait and, no doubt, law firm training supremos go round with whips to compel attendance, but this is tremendous reach, and an indicator of the subject’s importance.

The session was chaired, as always, by Professor Dominic Regan. My subject was disclosure (with and without an “e” at the beginning), and barrister Shantanu Majumdar of Radcliffe Chambers covered privilege as he did for the same event last year. Privilege is a subject which needs a light touch and rarely gets it – when it comes up at litigation conferences, I usually go out and have a smoke, check my e-mails and make my calls, and this is difficult when you are shut up in a basement in front of a camera. Shantanu Majumdar, uniquely in my experience, makes the subject interesting.

Dominic  is a good chairman – he comes across more as a genial host who has invited a couple of mates round to talk about things which interest them, without diminishing at all the seriousness of the subject-matter or the importance of the content.  LexisNexis have much improved the studio, possibly as a result of my complaint last year that I had to look down and left to see the slides and up and to the right to look at the camera. The slides are now immediately under the camera, which makes engagement rather easier.  Furthermore, the remote-control does actually move the slides when you click it.

Forgive this rather inward-looking focus on the mechanics of video-making, but these things matter more than one might think – I still shudder at the conference video which shows me pressing furiously at an unresponsive remote control button whilst trying to maintain a constant flow of talk.  LexisNexis have made a light-hearted how-not-to-do-it video, which mitigates their rather po-faced written instructions about timing, dress and demeanour. The latter prompted this reply from me:

I was thinking of turning up late, wearing a green check suit and a lurid striped tie, roaring drunk, and eager to pass on my opinions on politicians, bureaucrats and the EU. You have spoilt my day.

The Practice Direction and Questionnaire

What about the talk itself? The primary focus of my bit was on the eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire, with a mention of Lord Justice Jackson’s forthcoming “menu option”, a handful of cases, some technology, and a section on how law firms might prepare themselves to be able to say “this is how we do things here”. I began by taking it expressly for granted that the audience knew that a “document” is anything on which information of any kind is recorded, that the duty is to make only a “reasonable” search, and that the test is not “relevance” but a narrower “supportive of or adverse to” test.

Much of the early comment on the Practice Direction and Questionnaire included a fair amount of nervousness on the part of lawyers and some scaremongering by one or two of those who provide services into the market. Now that everybody has actually read the thing (a prerequisite for comment, you might think), a number of things perhaps become clear.

One is that the Practice Direction only applies to multi-track cases. Another is that the Questionnaire only applies a) if the parties find it helpful to use it b) if the parties disagree or c) if the court finds their agreement “inappropriate or insufficient”. Even then, the court will merely “consider” making an order that the parties will complete all or part of the Questionnaire. If the parties have reached the point of disagreement or if their agreement is inadequate, then there is clearly some value in exchanging some objective information in a structured way. The key point, so far as I am concerned, is the anecdotal evidence that firms are using the Questionnaire whether or not there is a disagreement, and not only for civil litigation. Far from being just another burden, it is actually useful.

Lord Justice Jackson’s “menu option” will remove the default of “standard disclosure” and require judge and parties actually to think about what is required to give effect to the overriding objective.  We do not, of course, have to wait for the menu option to pass formally into the rules, since the court already has power to make any order it thinks fit – and if the court can make any order, then you can seek any order. The missing component, so often, is that word “think”.

Some Disclosure and eDisclosure Cases

I mentioned a few cases and it is perhaps helpful to go through them here.

The importance of Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009), so far as I am concerned, lies less in the punishment for inadequate disclosure and more in the warning which might be summarised as “those who expect to litigate must be ready to litigate.” The actual quotation from HHJ Simon Brown QC’s judgment reads as follows:

….potential litigants… need to anticipate having to give disclosure of specifically relevant electronic documentation and [should have] the means of doing so efficiently and effectively.

Senior Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009) is significant because it is pre-emptive rather than punitive – the only significant published judgment we have in which the court banged heads together at the CMC and ordered a narrow ambit for disclosure by limiting custodians on the basis that everything else was preserved if needed. The judgment is significant also for its reference to the use of technology to reduce the volumes for expensive review. The UK’s disclosure rules are fertile ground for the use of technology like predictive coding. The illusory search for perfection is not the target.  Predictive coding should be a shoo-in here, at least for those firms willing to understand it – it is not that difficult a concept, frankly – and to explain it.

No amount of modern technology would have headed off the indemnity costs order in West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc [2012] EWHC 396 (TCC) (27 February 2012). That, for the most part, was a failure of process at a much higher level than omission of the inevitable percentage of documents which slip through any review process.  The danger of black-and-white judgments like this is that they incite nervousness about the wrong things – do not conclude from it that either technology or outsourcing is to be avoided. You do not revert to your horse and cart because someone else had a car crash, and nor will you revert to in-house manual review of every document just because some other firm got it in the neck for their disclosure mishaps.

Phaestos Ltd & Anor v Ho [2012] EWHC 668 (TCC) (16 March 2012) is a small-scale version of the same message; court-imposed deadlines are to be met, and failure to comply reaps punishment in costs and probably (as in this case) indemnity costs. My takeaway word from this case is “desultory”, used by the judge to describe the correspondence between the parties.

We have had two recent reminders that old-fashioned discovery principles arise even without the ‘e’ in front of the word. In Shah & Anor v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (13 October 2011) the point at issue was whether certain documents were “relevant”. In a smack round the head to everybody, including the judge below, the Court of Appeal pointed out that the test is not “relevance” anyway – it is whether documents are supportive of or adverse to the case of the giver or of any other party. The documents in question were not – and may well not have been relevant under the old pre-1999 test either.

Another fundamental principle (it appeared as part of the Phaestos case as well) arose in a case called North Shore Ventures Ltd v Anstead Holdings Inc [2012] EWCA Civ 11 (18 January 2012) where the question was whether documents in the hands of a limited company or a trust are within the “control” of a witness or party. Every case is different, but it is worth looking at the enunciation of principles in this judgment.

Conclusion

The key message here? The technology matters, and understanding the technology matters, but knowing some law and the rules matters as much, and it is is critical to know how to use them and the technology to your clients’ advantage to reduce the time and cost – as well as the risk – of disclosure.

This in turn requires firms to have three things – a body of lawyers who really have their heads round this subject, an understanding of the technology and techniques (the Practice Direction specifically refers to “techniques”, which is not the same as technology), and a process which, in everyday terms, means “this is how we do things here”.

Having all that will not immunise you against eDisclosure failures, but it is reasonable to suggest that if you try and manage without them, then at worst you will have a starring role in the next indemnity costs judgment and at best you will be uncompetitive vis-a-vis your rivals. Your rivals include not just other solicitors but rival business models offering either or both of technology and managed review.

The corollary of this is the more positive message that proper use of the rules and technology and some prudent business practices can help you win cases and win clients.

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