Spitting on the deck of the CPR

Unintended consequences are not necessarily unforeseeable. It was wholly predictable that the pre-issue obligations of the 1999 Civil Procedure Rules would shift the battleground to the front end of the litigation, and with obvious consequences in costs. As with the notoriously hard-fought US discovery process, if the rules give a weapon to the lawyers, then their duty is to use it. Lord Woolf seems a bit miffed, but has more to contribute to the debate than his reported attacks imply.

When Stanley Baldwin retired as Prime Minister and handed over to Neville Chamberlain, he promised “not to spit on the deck nor speak to the man at the wheel”. If Lord Woolf’s only contribution to the current debate were to come down from his lair every often and attack those who follow in his footsteps, then he would do better to stay at home. He has more to offer us than that.

Woolf recently attacked lawyers, judges and the government at a meeting of the London Solicitors Litigation Association, saying that they are all to blame for the fact that we have not seen the hoped-for reduction in litigation costs. Costs have in fact risen, putting litigation beyond the reach of all but the richest.

Scottish Civil Courts Review

One of my aims this evening was to knock out a few words on those parts of the newly-published Report of the Scottish Civil Courts Review as relate to case management and disclosure of documents, before moving on to one of the many other topics which warrant discussion.

Two hours later, I have done no more than draft an appreciation of its broad approach to mediation, case management and the use of technology and have run out of time and space for the section on documents as evidence.  It is good, thoughtful stuff, but even though I skipped the sections which do not concern me, the evening has gone.

Technology and constitutional protection at the Supreme Court

Readers will know that the defence of our democratic rights vies for my attention with efficient case management and the use of technology in litigation. The new Supreme Court combines both of these interests.

There is a story of a former Lord Chancellor, Lord Hailsham, who wished to speak to an MP called Neil whom he had espied in the public corridors of the House of Lords, and ran after him calling his name. Hailsham was, so the story goes, in full fig of robes and garters then worn by the Lord Chancellor. What would you do, as a tourist in that august and severe building, if an authoritative-looking man so dressed ran by shouting “Neil” in a commanding voice? They did as they were told.

Hailsham left office in 1974, so the story is not that old. Much has changed since then in the House of Lords – the hereditary peers have nearly all been expelled; the Lord Chancellor (a member of the government) surrendered the right to sit as a judge;  he is now not a Lord at all but a dull little man in a suit from the House of Commons, following a botched attempt to abolish the post in 2003; and now the separation of executive and judicial powers is complete with the removal of the national court of last resort to a Supreme Court on the other side of Parliament Square.

Judicial College gives hope of e-disclosure training

Today’s Times reports on the launch of a new Judicial College which will give judges the opportunity to top up their skills and keep up to date with developments in the law, practice and procedure. The Lord Chief Justice, Lord Judge, introducing the new scheme, makes the point that judges work alone and that “one judge very rarely sees how another judge sets about his or her work”.

The prospectus for the new college will be published next week. It will be interesting to see if case management, and in particular the handling of electronic disclosure, will feature in the prospectus as a stand alone topic.

Disclosure is one of the biggest components in a civil litigation case. Its costs have grown in proportion to the volume of documents which exist, and out of all proportion to the sums at issue. Judicial control of electronic disclosure or, rather, the lack of control, was highlighted in a report by KPMG in October 2007. Many of those who made representations to Lord Justice Jackson’s Civil Litigation Costs Review emphasised the importance of helping the judges with this, and he so recorded in Part 8 of his Preliminary Report (see pages 381 and 382).

The CPR were a product of their time. That time has gone.

If I were peddling porn or a political party, I would gauge the success of this site by the number of hits each day. I am content enough with that indicator, but what is more interesting to me are comments which suggest that people with a real interest in litigation and its management are reading my articles and finding that they strike a chord with them. It is particularly gratifying when, as last week, the comments come equally from Australia, the US and London – a reflection, I am the first to admit, of the universality of the subject matter rather than my own gloss on it.

Richard Harrison, a litigation partner at Laytons in London, was one of those who took the trouble to drop me a line last week. I value it because Richard is one of the few who combines actual practice in litigation for commercial clients with serious thought as to litigation’s place in society and as to how best to serve both the interests of justice and the clients’ needs. This cross-over between practice and thinking is vital: one of the biggest e-disclosure exercises I have been involved in, years ago, was for a Laytons partner;  Richard and I exchange e-mails from time to time or meet at conferences, and  he is one of those contacts who helps to keep my thinking rooted in the practicalities of life from the solicitor’s perspective.

Jackson Litigation Costs Review consultation ends

A few seconds before midnight on Friday, an e-mail arrived from Abigail Pilkington, the Clerk to the Review of Civil Litigation Costs. It was a bit eerie, really. The East Wing of the Royal Courts of Justice is a cavernous, Gothic place at the best of times, like Hogwarts without the wizards. I got locked into an upper corridor one evening, many years ago (accidentally, I should say, looking for a judge to grant an injunction) and found it a disquieting experience. I pictured Abigail on her own in the gloom, conscientiously sending out acknowledgements to late submissions like mine. Closer inspection showed firstly that the e-mail was an autoreply, and secondly that it had actually been sent within a few moments of me sending my e-mail earlier that day. Perhaps the RCJ needs some wizards to look at it is e-mail system.

The message included a reminder that submissions must also be sent as hard copy. Fortunately (since the 31 July deadline was due to expire 30 seconds later), I had finished my submission with a day in hand and had noticed the requirement to send a hard copy in the nick of time. That took me back a bit – I don’t think I have sent out a hard copy of anything this century. I blew dust off the printer, and found one of those plastic spines which had fortunately survived my recent cull of office equipment which I don’t use any more. After lots of faffing about with envelopes and Sellotape, I set off to find a post office. Gordon Brown’s commitment to public services has included closing many of these essential local services, and our nearest one, some way off, is run with that surly inattentiveness which results from having a monopoly. You can’t drive to it – there is usually a queue, and the traffic wardens are the only competent and efficient representatives of our local authorities here in Oxford. So I waited for a gap in the rain, and walked to the post office, queued by the notices warning of all the services which post offices do not provide any more, had my package weighed, paid for the stamp, and trudged back to my desk.

Woolf v Genn: the decline of civil justice

My post’s heading, Woolf v Genn: the decline of civil justice, is taken from an article in the Times of 23 June 2009 which I missed. I do not altogether blame myself for not seeing it — the people who redesigned the Times website last year, turning it from a place of structured order into a kind of literary lucky dip, have recently turned their attentions to the print edition, and only random chance now brings me to the legal pages. Doubtless some of the alterations were for the better, but the designers could not resist throwing in some extra change-for-the-sake-of-change to ensure that we noticed that things were different now.

Much the same is said of the Civil Procedure Rules of 1999. An overhaul was overdue and some of the resulting amendments were undoubtedly for the better. The designers, however, felt obliged to make some showy changes, apparently for their own sake. If there was any logic in changing “discovery” to “disclosure” or in doing away with terms like “plaintiff”, “writ” or “Anton Piller” they were lost on me and on many others. I have already referred to an excellent article by HHJ Charles Harris QC published in The Times on 16 April (Sad and unsatisfactory — but not destroyed) who said this:

Lord Neuberger to be Master of the Rolls

It is good news that Lord Neuberger of Abbotsbury is to be the new Master of the Rolls from 1 October (see the Times story here). The Master of the Rolls is the Head of Civil Justice and therefore the one who will be in charge of implementing the litigation costs recommendations to be made by Lord Justice Jackson at the end of this year.

His past roles include a stint as Judge in Charge of Modernisation which is a useful piece of background to bring to a civil justice system which desperately needs bringing up to date, both in its own systems and in the attitudes which the judiciary bring to court and should expect of parties.

I sat next to him at a Judicial Studies Board meeting last year when HHJ Simon Brown QC and I went with Mike Brown of Epiq Systems to talk about electronic disclosure and to show what modern litigation support systems were capable of doing. It would fair to say that not everyone in the audience got the point. Lord Neuberger certainly did.

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Getting away from it all

I have never been much good at this holiday lark. I can manage the logistics of travel, and I do not suffer from any illusion that the world’s continuing rotation depends on my being at my desk. I can flit off without a qualm if the destination is a foreign conference, but disappearing voluntarily is a different matter. I blame the Protestant work ethic in which I was brought up, then on being a law firm partner just at the point in the 1980s when we moved from having drinks before lunch to missing lunch altogether, and, finally, on several years of running a business involving software support which really did depend on my being available. What I do now in fact has few geographical constraints thanks to the BlackBerry and the ubiquity of broadband. It is, I begin to realize, no bad thing to give the brain a rest from time to time.

It is never the right time, of course, but the back-to-back conjunction of an unexpected opportunity to borrow a house and two commitments (simultaneously pleasurable and inescapable) took me out for two weeks notwithstanding my backlog. I should have been in Hong Kong, speaking at the LexisNexis e-discovery conference there; they got HHJ Simon Brown QC in my place, which will not have upset them at all. I had to break off a mind-stretching correspondence with a US commentator about the implications of a particular US Opinion which filled the closing moments before I left.  A white paper was part-done when I went away; I took it with me in the vain hope of finishing it off, but it will be the better for having been unopened for a fortnight.

The information war – news from the front updated

My post Cooperative hands across the sea referred to an article by Jason Baron on Ralph Losey’s e-Discovery Team blog.  Jason’s article attracted some comments, two of which are worth hiving off for comment in their own right. One concerns the “information war” and is covered here. The other is about lawyer education which I will come back to.

Dr Jochen Lardner urges the importance of having the skills to conduct searches in any area of life in an information economy. He refers to “authority/credibility, censorship, technical failure, cybercrime/disinformation/information warfare”. Regular readers will know of my strongly-held view that all of these things, with the possible exception of cybercrime, are areas where UK citizens must do battle daily with their own government, both defensively (it will record everything about you and then lose the data) and offensively (MP’s expenses, ministerial cover-ups).

It now seems likely that the Labour Government will die of weakness and internal corruption before we get to the hanging-from-lamp-posts stage of civil disturbance which seemed a real possibility earlier this year. Nevertheless, we must remain alert to the potential for government misuse (whether by carelessness, incompetence or design) of the mass of private information which is collected about us, and be able to fight fire with fire – the “disinformation/information warfare” to which Dr Lardner refers is a civil war as well as one against foreign powers.

Ark Group e-Disclosure Conference 2009

You can generate a lot of notes in six conference days in three countries in nine days and have little time to transcribe them. I am quite good at actually recording what people say, less so at the small but telling details like headings and page-numbering. I can generally rely on my memory to fill the gaps in my notes (and the bits I cannot read) but that is a tall order when information has rolled at me continuously for days like infantry at the Somme. Ark Group’s e-disclosure conference of the beginning of last week seems a distant memory on a cold, wet dawn in Sydney ten days later when I started writing it all up, still more in the dark aeroplane cabin surrounded by snoring travellers on the way home when I finished it off. There was lots of good stuff said at the conference, but I doubt you would read a verbatim account even if I could set it down. What follows is a summary.

The chairman on Day 1 was Lee Gluyas of DLA Piper UK LLP who, as in previous years, was well up to the challenge of keeping speakers to time. Lee’s opening comments identified a positive shift over the time he had been filling this role, a greater awareness of the issues and the need to grapple with them.

Birmingham Post reports on costs management trial

The litigation costs management trial on which I reported a few days ago (Jackson launches costs management trial in Birmingham) has been covered by the Birmingham Post.

Their article of 3 June is headed City will be test case for costs rules and includes a photograph of Lord Justice Jackson, three of the judges from the Birmingham Civil Justice Centre who will be running the trial, and Martino Giaquinto of Mills & Reeve who hosted the event at which the trial was launched.

It is no accident that the e-Disclosure Information Project was also launched in Birmingham. The modern, forward-thinking civil courts are representative of a thriving commercial and professional centre which seems to have a more cohesive feel to its business community than many other places.

Labour’s fall may be matched by litigation’s recovery

I have just sent off my slides for my keynote speech at the Ark Group’s e-disclosure conference on Monday 9 June. Its title is The Empty Bear Garden, and it is about the decline of litigation since the CPR of 1999 and what we can do to stem that. My conclusion is that we are in a position to turn the tide and will do so if we pay more attention to the balance between rules and discretion, focus more on what really matters and what clients want, and be willing to challenge some of the existing orthodoxies.

Roughly the same period, since New Labour’s election in 1997, has seen the rise of what the Institute for Public Policy Research recently called “intolerant centralism”. The state has become ever more intrusive into our lives at several levels: vast databases record every aspect of our lives; cameras watch our every move; faceless bureaucrats have acquired powers way beyond their abilities; widely-drawn (and badly-drawn) laws give policemen and others in uniform the purported right to exercise a discretion unintended by Parliament; highways officers at the bottom of life’s intellectual pile clutter our roads with notices and urge us to “think”; ministers who appear on the surface to have been merely useless (Jacquie Smith) or deeply stupid (Caroline Flint) emerge as sinister, assuming powers over our lives thanks to their party’s majority which we would never grant them as individuals; MPs behave as if the norms of society do not apply to them, relying on the letter, but forgetting the spirit, of the law; rules multiply, each one having the effect of  nullifying our scope and ability to think for ourselves.

Jackson launches costs management trial in Birmingham

Lord Justice Jackson went to Birmingham on Tuesday to encourage its litigation solicitors to take part in a costs management trial in the specialist courts. The details are interesting, but less so than the policy considerations which underlay Sir Rupert’s approach to the business sector – the Small and Medium Enterprises or SMEs – which is one of his (many) particular concerns. I went to hear him – my interest in the rules and the technology of e-disclosure is infinite, but it is servant to a wider interest in making litigation accessible. “Accessible” means that it is affordable to the clients and still profitable to the lawyers.

I gave up marking the key passages as Sir Rupert outlined the scope of this part of his investigation – it was all important. For those with short attention-spans, I will leap to the end and report that the upshot was that the majority of the assembled company were willing to support a voluntary trial during which judges in the Mercantile Court and the Technology & Construction Court would supplement their case management role by managing costs in tandem with (or, strictly, as part of) their close attention to the other aspects of bringing a case to trial. Not everyone supported the idea, but no-one opposed it. Sir Rupert’s gentle lucidity barely concealed the implication that if this approach did not work then something more drastic will be needed. If it does not work in Birmingham, it would not work anywhere.

Hard to keep up with Lord Justice Jackson

I went to Birmingham on Tuesday evening to hear Lord Justice Jackson launch a new costs management initiative in the Specialist Courts there, and got a taste of the energy which has brought us his Preliminary Report on Civil Litigation Costs so quickly.

As the main part of the meeting drew to a close, he rounded up a small team to finalise a form of spreadsheet costs template, saying airily that if it was not finished that night it could be concluded in the morning. Whether he actually intended to keep them there all night or  stay overnight in Birmingham and resume in the morning was not clear, but his comment obviously concentrated minds and it was done within the hour.

I parted company with him at 7.30pm at New Street Station, and his Guidelines, reporting on the meeting and setting out how the trial would work, were completed at 09.52 the following morning (you see, document metadata does have its uses).

My own report on the meeting (which covered points of wider significance than the costs management trial itself) is being patched together on train journeys and will not be out for a bit – I cannot compete with this production rate. You may be interested in the meantime to read the Guidelines and to see the Costs Estimate Template.

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Something for everyone in the Jackson litigation costs report

Lord Justice Jackson’s interim report on civil litigation costs weighed in at 650 pages, not the 1,000 pages which rumour anticipated. It is as well that I am commentator not a newshound journalist, because I missed the big day and was on-air myself at a rather more nuts-and-bolts level (giving a live e-Disclosure broadcast) as Sir Rupert Jackson was being interviewed by the BBC on the more momentous subject-matter of his report.

That there was something for everyone in the report is evidenced by the range of things which others picked up on in reporting the launch. LegalWeek headed its report Jackson to review complex commercial disputes and picked up on Sir Rupert’s expressed determination to cover complex multi-party disputes as well as cases in lower courts. It quoted him as saying “I have come to the conclusion that the Commercial Court is not a sacred territory, which falls outside the terms of reference set for me by the Master of the Rolls……The recommendations in my final report must encompass all civil courts, including the Commercial Court.”

The untapped potential of YouTube as a promotional medium

You can launch political policies, bands and brands on YouTube, but perhaps not 1,000 page interim reports on litigation costs. Lord Justice Jackson will do his launch tomorrow with an old-fashioned press conference. Other things, however, bring the marketing and educational value of video to mind.

Lord Justice Jackson’s initial report on the reform of civil litigation costs is due to be launched at a press conference tomorrow, 8 May. There is an article in Times Online today by Neil Rose headed What will the Jackson report say? which summarises some of the things we might expect to see from what is rumoured to be 1,000 pages long – and that is just the interim report.

The article’s most important point comes at the end – this not a government-commissioned report. It was the Master of the Rolls, Sir Anthony Clarke, who asked Sir Rupert Jackson to undertake what was always going to be a vast and important task. The role of judges is central to any planned reforms and, one hopes, something which is immune from political pressures.

I will not be there, unfortunately. I long ago agreed to do an e-disclosure live video presentation for CLT Onlne which goes out at 1.00 tomorrow.  The bare reference in my slides to the Jackson Litigation Costs Review will be outdated by the time I get to it.

Richard Susskind webcast on the End of Lawyers?

Professor Richard Susskind caused a stir at the ABA TechShow in Chicago in April with his thoughts on the way the future looks for the legal profession. The context was the launch of his latest book, The End of Lawyers?, that comforting question mark flagging the possibility that the profession may survive in some form if it adapts.

I wrote about Susskind’s book when parts of it were trailed in the Times (see Richard Susskind and the End of Lawyers) and I will not repeat what I said there about the potential for change in the litigation support market. Nor will I attempt an overview of Susskind’s wider propositions, which are readily available elsewhere.

I have been listening to a webcast of a discussion between Richard Susskind and Mark Harding, Group General Counsel of Barclays, and focusing on a couple of points which seem to me to both imminent as opposed to speculative (although Susskind’s speculations tend to become the norm rather quickly), and relevant to the management of litigation and other areas which involve the handling of electronic documents. Litigation is the one area which (as I noted in my earlier article) has defied Susskind’s original predictions because (he told me when I asked him three years ago) the clients had not put pressure on the lawyers to adopt technology.

The MoJ and litigation reform

I am not sure what to make of yesterday’s article in the Lawyer. Chaos as MoJ scuppers litigation reform is the headline. Below that, the sub-heading shouts Judges and politicians at loggerheads as Jackson review kicked into touch. My difficulty is that nothing in the article bears out the second half of that assertion.

Judges and politicians at loggerheads? Well, yes, of course. They have very different characteristics and priorities. The senior judges are decent, honest people with a genuine and pressing wish to improve access to justice and to make litigation the affordable right of every business and individual. Not much in common with New Labour then, beyond the lip-service paid by giving an otherwise unknown politician the label “Access to Justice Minister” .

LexisNexis debate marks ten years of the CPR

LexisNexis, publishers of the Civil Court Practice 2009 “The Green Book” marked the tenth anniversary of the Civil Procedure Rules with a debate chaired by Lord Neuberger which considered the impact of the CPR and assessed its strengths and weaknesses.

The panel members were:

* Sir Anthony Clarke, Master of the Rolls
* Simon Davis – Clifford Chance
* District Judge Michael Walker
* Professor Michael Zander QC – London School of Economics

The debate was recorded on video and can be found on the LexisNexis web site. It comes in convenient chunks – two sets of short excerpts, some highlights, and the full version (for which user details are required). I have so far watched only the highlights but will certainly go back to the full version.

Informed comment in the Times adds to the Woolf rules debate

No sooner had I published my post Have the Woolf reforms worked? yesterday when Jonathan Maas flicked me a link to an article in Times Online on the same subject. It is called Sad and unsatisfactory – but not destroyed and is written in his personal capacity by His Honour Judge Charles Harris QC, the Designated Civil Judge for Oxford. Like me, Judge Harris was reacting to an article in the Times of 9 April by Lawrence West QC.

Judge Harris is chairman of the civil committee of the Council of Circuit Judges. I came across him when he was the able convenor at a kind of judicial boot camp last Summer. HHJ Simon Brown QC and I were invited to speak there about electronic disclosure to an audience which included the Master of the Rolls.

The focus in Judge Harris’s article is on the greatly increased complexity seen in the last decade, much of it not merely unnecessary but counter-productive. We have not only seen a great deal of new law, but statute draftsmen seem to have lost the ability to write succinct unambiguous law. The CPR and their Practice Directions have grown in volume (that is, pages), in detail, in prolixity and in their implications for practitioners. The remedy, Judge Harris says, is “greater simplicity, with less prescription and preparatory paperwork”.

Not going to Canada for the second time this month

As you may recall, I was not able to go to a meeting in Toronto at the beginning of April, when Senior Master Whitaker and I had hoped to see Justice Campbell and others to talk about common ground between Canada and the UK on the case management of civil litigation. I am also not going to Montreal next week for the LegalIT 3.0 conference  on 20 and 21 April for the prosaic reason that I have only just found out about it.

Jo Sherman of eDiscovery Tools and the Australian Future Courts Programme is coming here at the week-end so that we can talk about the new Australian Federal Practice Note 17 on the use of technology in the management of discovery and the conduct of litigation which she masterminded and which is relevant to our planned Technology Questionnaire and e-Disclosure Practice Direction. She mentioned that she was en route to a panel presentation in Montreal – the first I had heard of it.

Taking the Administrative Courts to the regions

The Times of 9 April carried an interview with Sir Anthony May, President of the Queen’s Bench Division. Its title London-centric? We are taking power to the people conveys the gist of the article. The Administrative Court is to soon to open in Birmingham, Cardiff, Leeds and Manchester.

The Administrative Court handles a wide range of cases with a public law element – immigration and asylum matters, claims against central and local government and against regulatory bodies, as well as certain child care and prisoners’ rights cases. Setting up regional centres has obvious merit from the court’s own point of view – it has become grossly overburdened with, at one point, files stacked in cases in the corridor and a long waiting list of applications awaiting allocation to a judge. There are obvious advantages too from the applicants’ perspective – many of the claims, by their nature, are made by people who cannot afford the additional costs incurred in travelling to London, quite apart from the fact that claims involving, say, a local authority and one of its residents are better heard close to where they both come from.

Zander sees his Woolf CPR predictions justified

Michael Zander QC, now Emeritus Professor at the LSE, was a forthright and eloquent critic of the Woolf reforms which led to the Civil Procedure Rules in 1999. Few took much notice of his predictions, least of all Lord Woolf. I was amongst the vast majority who ignored him, won over I think in retrospect, by Woolf’s eloquence and industrious decency in tackling the twin evils of delay and cost.

It was a shock to open the rather large new rule book and discover that all Woolf’s emphasis on the role of technology – particularly in respect of disclosure – had been reduced to a single reference to the word in the overriding objective. I also recall a sense of growing unease on seeing the sum total of the new burdens which fell on practitioners at the early stages of a case – each of them had been widely debated in the run-up to the final version of the rules, but seeing them altogether simply did not square with the fact that relatively few cases went to trial anyway. How could it be right to impose on every party to every case a set of duties and obligations designed to reduce a burden which was irrelevant to most cases even under the old rules?

Mediation – not about just settlement but just about settlement

Professor Dame Hazel Genn QC has launched a stinging attack on the downgrading of civil justice and the promotion of mediation at the expense of the civil litigation system. ADR is a worthy parallel remedy but government promoted it more as a means of saving money than as an extension of access to justice. The courts system has been run down and some of the rules changes have succeeded only in driving litigants out of the system

The original and primary purpose of this Commentary is to draw attention to the formal obligations of parties and judges in respect of disclosure under the Civil Procedure Rules, to the problems it causes, and to the solutions available to meet it. Important though that is as a component of cost in litigation, you cannot really look at one such element in isolation. The management of disclosure is a sub-set of case management generally. Case management is a component of what makes justice accessible. Access to justice is a fundamental right in society and it is amongst the primary duties of government to provide and foster it. One of the reasons why I watch and report on what is said by US Magistrate Judge John Facciola, both in his court and outside it, is that he has the same strong sense that his specialist subject – which is the same as mine – is but a part of a wider set of issues.

Dame Hazel Genn QC is professor of socio-legal studies at UCL. Her December speech attacking the decline of civil justice is pithily written up by Joshua Rozenberg in his article Dame Hazel Genn warns of downgrading of civil justice. I see no point in repeating him when you can read for yourself his summary of what has been said (by others as well as Dame Hazel) about the role of government, the implications of Halsey and the retrospective views of Lord Woolf’s reforms.

Judge Facciola LegalTech messages are for UK as well as US lawyers

There was something almost surreal about the discovery that the LegalTech organisers had failed to record US Magistrate Judge John Facciola’s keynote speech, given that Facciola regularly delivers Opinions castigating parties either for faulty decisions about technology or for technological incompetence. Did someone decide “Nah. It’s only that Italian guy – let’s not bother” or did someone press the wrong button on the tape recorder? Whatever the cause, it is a pity. The speech, like many of John Facciola’s Opinions, should be compulsory listening for lawyers and judges, and as much on the UK side of the Atlantic as on his.

The speech was introduced by Neil Aresty of Legal Computer Solutions, Inc. Aresty made reference to the “Christmas Eve decision” in Covad Communications v Revonet. A paragraph from that decision will suffice to set the scene and to show why Judge Facciola strikes a chord in the UK. Speaking of an archaic form of document request which ignored the last 40 years of technological development, he said:

“While I have considered a similar provision in depth once before, I see no need to repeat that metaphysical exercise here because it is a waste of judicial resources to continue to split hairs on an issue that should disappear when lawyers start abiding by their obligations under the amended Federal Rules and talk to each other about the form of production. I would much prefer to carry out my duties in accordance with Rule 1, which provides that the rules “should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.”

Parallel views from across the Atlantic

The respected e-discovery commentator Tom O’Connor has published his initial report on LegalTech on his blog, with the title The Big Takeaway from LegalTech New York. His patch in the US e-discovery scene roughly parallels mine in the UK. We did a panel together at LegalTech (see How safe is safe harbor?) and we are both involved with e-Disclosure Information Project sponsor Anacomp/CaseLogistix.

Tom’s main theme is the growing realisation of the importance of the clients’ data at the left hand (information management) end of the EDRM diagram, and the links between content management and electronic discovery. His comment is actually about the lack of such realisation by lawyers, despite the fact that clients and suppliers are moving there fast – Autonomy’s pending acquisition of Interwoven is clearly founded in part on this realisation.

Tom rightly ties this assessment of the lawyers’ slowness to grasp the point to Judge Facciola’s speech, which remarked on the stubborn refusal of lawyers to accept that technology must be understood by those who purport to conduct litigation. I will shortly put up my own report of Judge Facciola’s speech.

The key, in the US and in the UK, is education. Clients, courts and justice itself are badly served for as long as lawyers refuse to accept that handling electronic documents requires a modicum of knowledge about the subject.

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Jackson sets out some litigation costs issues

A thoughtful article by Simon Davis and Simon James of Clifford Chance has appeared on the Lexology site. A purist might quibble about its title – Jackson’s dilemma – or how to cut the cost of litigation – on the grounds that Lord Justice Jackson faces nothing so simple as a choice between one alternative and another, as the article itself makes clear.

It touches on several of the factors which Jackson will want to cover. On the pure costs side, the “loser pays” principle, costs-shifting, contingency fees and CFAs, and champerty (or “trafficking in litigation” as the article puts it)  will have to be considered.

Plenty to write about but no time to write

I had a patch recently when I had no time to write for a few days. Someone sent me a message, not exactly complaining, but making it clear that my apparent dereliction of duty had been noticed. It is not in fact a duty, or does not feel like one, and there is no shortage of things to write about. There is plenty else going on as well, however, and I cannot simultaneously do things and write about them.

Besides, the subject-matter of the article which sat at the top of the blog for a few days warranted the extra exposure before the next one took its place. It is called Fannie Mae – be careful what you agree to with e-discovery orders and concerned the lawyer in the US Fannie Mae litigation who agreed on behalf of his clients to discovery obligations which cost them $6 million (9% of their turnover). His clients were not even a party to the litigation. The outcome ought to suggest to any lawyer involved in disclosure applications that it might be helpful to scope a project before committing your clients to it. It is a suggestion as useful in the Birmingham Mercantile Court as in Washington D.C.

SCL meeting – Civil Litigation Costs Review

Lord Justice Jackson is conducting a year-long review into the costs of civil litigation at the request of the Master of the Rolls. His terms of reference require him to undertake a fundamental review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost.

There is an open meeting of the Society for Computers & Law on Tuesday 13 January at Lovells to discuss the SCL’s submission to the review – see the background and event details on the SCL web site.

The review is intended to be wide-ranging and a correspondingly broad range of views is hoped-for.

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Identify early and co-operate in 2009

As I sign off for Christmas, I would like to thank all those who have sponsored, supported or in any other way encouraged the e-Disclosure Information Project in 2008 and wish you all a Merry Christmas and a Happy New Year.

It is only a month since I did a round up to cover the Project’s first birthday. Since then, we have had yet a third new e-disclosure case in the UK, Abela v Hammonds, and LDSI has joined the sponsors.

There is already a great deal planned for next year: the conference diary is filling up; my Law Society seminar tour will take up again; there should be a good UK showing at LegalTech in New York; there are plans afoot for co-operation with US, Australian and Canadian judges, rule makers and thought leaders with, I hope; a visit to each of these countries in March/April; there is a Technology Questionnaire to launch and a Practice Direction to draft; I hope to repeat in other UK cities the talk we gave in Birmingham at which we showed judges, barristers and solicitors some of the applications which are used in electronic disclosure; Vince Neicho of Allen & Overy and I are plotting an e-disclosure conference on our own model; with the Project format now established, I am looking forward to yet more interaction with its sponsors; as well as going to see and speak to people on their own patches in the UK and abroad, I hope to entice more visitors to come to Oxford and kick ideas around on Port Meadow, as I have done several times this year.

Mancia: interest in US being interested in them

A growing theme on this site which will get more important in 2009 is that electronic discovery in the US is getting to be of more interest to us in the UK. This is not because the English courts are getting more involved in e-disclosure (they are, but that is not why we are paying more attention to the US). The new interest derives from US Opinions which have wider and more universal messages than hitherto.

Americans can pound each other to bits over “spoliation” and “defensibility” and we could not be more bored. Nor do we really want to be told how to do it at a judicial level (but we love the technology, thanks). That is in part because there is a growing appreciation that we have some pretty good rules of our own if only anyone would use them, as judges are beginning to – see Digicel, and Abela ( the links are to articles of mine about these English cases).

Reviewing the Commercial Court Recommendations

The risk that contentious work might shift to arbitration or to other jurisdictions such as Germany is reason enough for us to fight to keep it here. The Commercial Court Long Trials Recommendations may have had too wide a focus. Attention to the costs of disclosure, with help from a new generation of Early Case Assessment tools and a pooling of ideas with Australia and Canada may be the next step

On 2 December, the City of London Law Society considered the impact of the Commercial Court Long Trials Recommendations at an open meeting held at Freshfields. I usually go to any such events but had not picked up that it was happening – not the only thing I was in the dark about on that day, since someone drilled through a mains cable at breakfast-time and I was without power till far into the night. I would at least have kept warm if I had gone to the meeting. I am grateful to Mark Surguy of Pinsent Masons in Birmingham for a summary of what was said.

E-Disclosure Information Project first birthday

November marks the first anniversary of what became the E-Disclosure Information Project. It did not have that name when I ran a half-day training session for judges in Birmingham last November but it was effectively launched with that event. This Commentary began a year or so earlier.

That first session was made possible by generous support from forensic collections expert FoxData whose Ian Manning has continued to back what I do, by turning out to speak and with useful information and introductions as well as financially. Tyrone Edward, now at Ernst & Young Forensic Technology & Discovery Services, made the suggestion for a business model which has allowed me to spend substantially all my time on spreading information about electronic disclosure. The Project is sponsored by the companies whose logos appear here, but on the basis that it is independent and product-agnostic.

The main outputs from the e-Disclosure Information Project are what I write here and on my website, and conferences. There are 228 posts on this site. None of them are simple regurgitations of press releases – PRs are invaluable sources of hard information, but I am more interested in the context and the implications of a software or services initiative than in the bare words of a press release.

Job cuts at the Legal Services Commission

The Government’s commitment to access to justice is so important that it even warrants capital letters – it is Access to Justice, no less, which, as I noted in another post recently, must mean that it is an “initiative” (or possibly even an Initiative).

New Labour Initiatives come in two flavours – those whose life-span is the time it takes to publish the press release, and those on which vast sums are lavished before they are quietly ditched a few months later. We can expect to see few of the latter in these hard times but plenty of the former – look at the Department of Health web site, for example, whose Recent Stories page begins with the proud assertion that “A week rarely passes by without the Department making a major announcement”. Can we have some health care as well? we might ask.

Lord Justice Jackson to head litigation costs review

The Master of the Rolls, Sir Anthony Clarke, has appointed Lord Justice Jackson to head a committee to review the costs of civil litigation.

The appointment apparently follows a meeting between Sir Anthony Clarke and Bridget Prentice, Parliamentary Under Secretary of State at the Ministry of Justice. Bridget Prentice’s specific responsibilities include access to justice (or, rather, Access to Justice, the capitals presumably denoting a Government “initiative” rather than merely a statement of the right of every citizen).

There is as yet nothing on the Ministry of Justice web site about this, but a Legal Week report says that the review will begin in January and report in December 2009. Lord Justice Jackson will be assisted by a small team of assessors drawn from the judiciary, the legal profession and, interestingly, an economist.

Betting on certainties in the information war

The odds on gaining improved information management from the recession are better than those on offer for Peter Mandelson’s resignation before the next election. The war to tame the information needed for litigation and regulation, like other wars, will breed new tactics and technologies

My article What will recession do for civil justice?, which I published last Friday, brought together subjects as diverse as the agricultural depression of the 1870s and Peter Mandelson’s attachment to rich foreigners, in the context of leadership and the role of judges in the recovery which will come from the attrition of recession. My theme was that as lawyers and judges sort through the wreckage of the old economy, there may be an opportunity for business practices to take a leap forward. Specifically, I suggested that the time and expense of handling the litigation which has suddenly become a non-optional part of corporate strategy might prompt companies to reappraise how they manage the information whose volumes will prove the biggest single source of expense in litigation. The courts will have a hand in shaping how important that seems next time round.

What will recession do for civil justice?

I nearly did Gordon Brown an injustice last night. My notes for a talk to be given in Birmingham included the observation that “our weasel-worded Prime Minister has not yet found the guts to admit that we are in or heading for recession”. Fortunately, the subject came up in the pre-seminar drinks, and someone drew my attention to the fact that our weasel-worded Prime Minister had in fact summoned the courage to use the R-word the previous day.

I am a newspaper junkie, which is subtly different from being a news junkie. I do not much mind about being bang up to date with the news, but no copy of the Times leaves the house without my reading it from cover to cover – well not the sport obviously or the fashion, but most of the rest. Having been off doing my Phileas Fogg bit (I was at e-disclosure conferences in both Sydney and Washington the previous week), I have a large backlog of newspapers to read, and keeping up to date has suffered as a result.

It is rather odd, in fact, reading old papers over a week as volatile as that one, particularly as I read them in no particular order. It was not just that share prices were going up and down like an intern’s knickers. There were old stories coming round again, and I began to think that I had fallen into a newspaper time-warp. Here is the Labour party finally fulfilling its 1931 plan to nationalise the banks (good to know that Labour keeps some of its promises anyway, even if it takes a while). And there is Peter Mandelson accepting hospitality from a rich foreigner just before the foreigner gets a valuable trade concession. No connection at all, says Mandy and, of course, we have to believe him, just as we had to believe Tony Blair when he said that he knew nothing about the Bernie Ecclestone £1 million loan and its intimate connection, in terms of timeliness at least, with the relaxation of the tobacco advertising ban. Turn the page – oh, there is that story back again. It seems that when Teflon Tone said white was white on that occasion, what he meant was, um, the opposite.