DOJ eDiscovery Director speaking in London this week

Amongst the many interesting contributors to the IQPC Information Governance and eDisclosure Summit taking place in London from 14 to 16 May is Allison Stanton, Director of eDiscovery, FOIA and Records for the Civil Division of the US Department of Justice. She is taking part in a keynote panel about regulatory obligations, enforcement priorities and expectations along with Dean Gonsowski of Recommind and Keith Foggon of the Financial Conduct Authority (I don’t usually link to the web sites of government agencies, but this one is new and you might want to see what they do).

Allison Stanton is a reason on her own for attending this event, far and away the most interesting and lucid speaker on this subject from any regulator. She has been interviewed by Metropolitan Corporate Counsel, something I missed when it was published in February. Here is a link to their article DOJ Director Talks About Investigations and eDiscovery Technology.

The most interesting section in the interview is the one about costs, in which Allison Stanton makes it clear that whilst the DOJ’s primary driver is its “core mission to protect the American public”,  it is willing to listen to companies who are able to explain “in nuts-and-bolts terms” the costs and burdens which they anticipate in complying with a regulatory demand. One would not mistake anything she says as implying that the DOJ will compromise on its core mission, but the invitation is there to open discussions around cost and burden.

New Law Journal – Jackson articles by HHJ Simon Brown QC and Dominic Regan

The NLJ is publishing an excellent series of articles about the Jackson reforms. They now have another in the series of Costs Budgeting articles by HHJ Simon Brown QC, this one called Costs budgeting: Proportionality is trumps. The index to the whole series is here.

Meanwhile, an article called Dominic Regan reflects on the reform of disclosure (again) brings further thoughts from Professor Dominic Regan on the costs of eDisclosure as they are now to be managed by the court.

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An optimistic article about eDisclosure post-Jackson – and a less sanguine one

Georgina Squire of the London Litigation Solicitors Association has written a concise and practical guide to eDisclosure under the new rules, which has been published in the New Law Journal. It is called A brighter future? (not the first, I think, with that title on this subject, but the message is an important one) and it emphasises the need for early attention to scope, for discussions aimed at narrowing the arguments, and for focus on what really matters.

I don’t agree with all of it – the sentence The new disclosure rules are a significant departure from the previous approach of “leaving no stone unturned” ignores the fact that that expression comes from two cases (Digicel v Cable & Wireless citing Nichia v Argos) in which looking under every stone was expressly disapproved of. The new rules are not a “significant departure” from that approach but a reinforcement of it.

That apart, this is a good article, worth reading by those who are facing their first CMC since the rules came in.

Meanwhile, Richard Harrison of Laytons, one of the more thoughtful of the litigation lawyers who actually have to do this stuff, has set down his view of Precedent H and the context in which it is to be used. His article, on the SCL website, is called Cost Management and Budgeting: the Absurdities of Precedent H and has as its opening sub-heading The need for scepticism.

Epiq Systems seminar focuses on the new Costs Management rules

Epiq Systems held an extremely informative seminar on the new costs regime earlier this week. You will find at the end of this post a link to the video made on the day with the strong recommendation that you watch it.

“The thing about Dominic Regan”, somebody once said to me, “is that nearly everything comes down to costs to him”. It was meant as a compliment, and reflected the fact that much of the Civil Procedure Rules, of the case law which exists around it, and of the strategy of litigation, runs sooner or later into questions of costs. There are, of course, litigants for whom expense is no issue, cases which must be fought at any price, and large sections of the rules which regulate aspects of procedure to which costs have no direct relevance. The justice which is set squarely in the opening section of the overriding objective, however, is no justice at all if parties cannot afford it;  Lord Justice Jackson’s remit, however widely drawn, was driven by the need to control costs, and the rule changes which are named after him largely reflect that.

Professor Dominic Regan was one of four expert panellists at a seminar organised by technology provider Epiq Systems in London this week. The others were Master Colin Campbell of the Senior Courts Costs Office, costs expert Michael Bacon and Allen & Overy litigation support manager Vince Neicho.  The room was packed, and if much of the focus was on eDisclosure, the panel ranged across the wider implications of the new costs regime. The session was led by Epiq’s Saida Joseph.

Discussing eDisclosure round the table at the Brewery

The fact that we enjoyed ourselves at the TGCI eDisclosure event in London did not make it any less of a serious forum for discussion. The round-table format, the complete absence of PowerPoint slides, and the invitation to delegates to interrupt as they wished made it an extremely lively and useful exercise.

There are a limited number of ways in which you can organise conferences and seminars aimed at dispensing information and promoting discussion about eDisclosure / eDiscovery. The conventional approach, a series of lectures and panels delivered from a podium or platform to delegates in rows of chairs, is ideal in many ways, particularly when the intention is dispensing information from the few to the many – that is what delegates generally expect, and I am told by someone who organises events across many different sectors that lawyers are not particularly interested in alternative formats – even government delegates look for more imaginative approaches.

I am not being critical here – I have no quarrel with the conventional approach and am rarely an enthusiastic participant in those events where you are divided into tables and given a whiteboard, a set of scenarios and some poor sap who must report back to the conference.  One approach I do like, which we are seeing more often, is the “led discussion” where we get down from our platforms, pull our seats into a circle and talk around a subject at the behest of a nominated group leader.

Jackson events next week with Epiq and Consilio and guides from Judge Brown, Dominic Regan and Kerry Underwood

A tweet last week compared the first few days of the new case and costs management regime with 1939 – the reference was not intended to evoke anything belligerent but that period of uneasy calm known as the Phoney War which followed the formal declarations. We all know that something momentous is happening to those involved in civil proceedings, but until we start getting reports of case management conferences and feedback from the front line (to continue the war analogy) we cannot really tell how it will all play out at a practical level.

For the most part, I have stuck to straightforward recitals of what the rules say, reckoning that the MoJ’s botched launch of the amendments has so obscured the position that people are grateful simply to be pointed to the key provisions – as another tweet said, the MoJ was going to celebrate with a party at a brewery, but could not find anyone to organise it. At a conference this week, I offered delegates the choice between a summary of what the rules say and an analysis of their implications; they went for the summary, leaving it to Senior Master Whitaker to delve more deeply into what the changes mean for practitioners and clients at a later session.

It is worth pointing you to some of the events and articles which get more deeply into the implications.

Events from Epiq Systems and Consilio

I have already written about a seminar which Epiq Systems is running on Tuesday 23 April at 8:30am at 60 Cannon Street. Its title is Costs changes to the Civil Procedure Rules: join the debate, and the speakers are Master Colin Campbell, Senior Costs Judge, Michael Bacon, costs lawyer, Vince Neicho, Litigation Support Manager, Allen & Overy and Professor Dominic Regan, adviser to Lord Justice Jackson on costs budgeting. The focus is on the pre-estimates of eDisclosure costs which are required whether or not costs management has been ordered (an important point this, for those confused by the cost management exemptions), on keeping costs down by the use of technology and outsourced review, and on the crossover between the new costs regime and clients’ demands for more imaginative costs structures – the predictability and transparency required by the courts is, of course, much the same as  a client wants from its lawyers anyway. Registration for this event is here.

On Wednesday 24 April  Consilio is producing a webinar called The eDisclosure Shakeup: CPR 31.5 with Marla Bergman of Goldman Sachs, Garry Bernstein of Consilio and me. As I have written here, the focus is on the value of metrics in approaching costs estimates – if you  keep information about past cases (or work with someone who does) then the apparently daunting task of estimating costs so early in the proceedings becomes more feasible. No one (not me, anyway) is saying that it is easy, and many cases will buck all known trends; nevertheless, there is commonality in the components of cases which, if captured, can the used to inform future decisions. Registration for this event is here.

Jackson and eDisclosure with Hobs Legal Docs in Manchester

On Thursday, I joined Terry Harrison of Hobs Legal Docs to give a talk on the eDisclosure aspects of the Jackson reforms at a seminar hosted by The Royal Bank Of Scotland in Manchester.

My real interest in this subject is the opportunity which the rule changes give to law firms and their clients not just to control costs but to make litigation more attractive as a business endeavour. Those who know the rules and who are ready and able to express proportionality arguments in a way which legitimately reduces the volumes of data (“legitimately” meaning in a way which is consistent with professional duty to court and clients) can not only win clients but put themselves in a position to influence the management of the case.

The desultory manner in which the Ministry of Justice has rolled out the Jackson updates has obscured the clear lines laid down by Lord Justice Jackson, requiring me to spend my time trying to clarify what the rules actually say rather than to focus on how they can be used to strategic and tactical advantage. An hour is not long enough to cover it all, and I was pleased to get a message via Twitter afterwards from someone who was present who said that he would like to hear the rest of the story. I will be happy to oblige if asked.

The Ghost of Legal Services Yet to Come – a Futurist tells of things that may be

LegalTech Asia Technology Summit opened in Hong Kong with a thought-provoking keynote from futurist Rohit Talwar. Don’t be put off by that “futurist`” label – UK solicitors (and even barristers) get something to think about from talks like this. I pick out the themes and points which are relevant to lawyers now. The Scrooge parallel, I should stress, is mine not Rohit Talwar’s.

“Before I draw nearer to that stone to which you point,” said Scrooge, “answer me one question. Are these the shadows of the things that will be, or are they shadows of things that may be, only?”

Still the Ghost pointed downward to the grave by which it stood.

“Men’s courses will foreshadow certain ends, to which, if persevered in, they must lead,” said Scrooge. “But if the courses be departed from, the ends will change. Say it is thus with what you show me!”

Scrooge’s story is, as we know, one of redemption, and futurist Rohit Talwar, keynote speaker at LegalTech Asia Technology Summit in Hong Kong at the beginning of March, was rather too jolly to make an authentic Ghost of Christmas Yet to Come. Nevertheless, his message might well make lawyers think of the grave which persuades Scrooge to change his ways or, more positively, think of ways to modify their practices to meet a changing future.

“We have got to see past the current turmoil or lock ourselves into our history”, he said, and his reference to “current turmoil” related as much to the daily rushing around with what is on our desks as to the wider economic scene.

“These futurists are all very interesting, but I want to know what my firm should do now”. This is the common cry of those who attend talks by those who anticipate business trends. I do not particularly like the label “futurist” because it somehow implies too much science and not enough flesh and blood, but that is how Rohit Talwar describes himself, and there was certainly more than enough of the human in his talk. I occasionally meet an equivalent perception myself – because I live in Oxford and have a grey beard, it is somehow assumed that I am “academic”, and “academic” carries the implicit connotation of  separation from the real world. My focus is in fact very much on commercial futures.  What Rohit Talwar has to say, as with Richard Susskind, has implications for law firms now.

Rohit Talwar packed a lot into his 90 minutes. I must be selective in what I report, sticking to those things which have obvious relevance to eDiscovery and to the business processes needed, both by law firms and by their clients, to elevate eDiscovery beyond being a plod through the rules or (which is just as bad) being a mechanical set of tasks with little apparent relevance either to evidence and law or to business objectives.

Send three and fourpence, going to a dance – muddled messages from the MoJ

It is fitting that an article about confused messages should have to start with an explanation of its title. Only those who are old and British will know that pre-decimalisation currency consisted of pounds, shillings and pence, written as £. s. d. “Three and fourpence” was three shillings and four pence (written as 3/4) and was equivalent to about 17p in new money.

The (possibly apocryphal) story goes that a Great War front line commander sent a message back from the trenches “Send reinforcements, going to advance” which reached HQ as “Send three and fourpence, going to a dance”. It comes to mind as we watch the UK Ministry of Justice, and those responsible for the mechanics of rule-making, convert Sir Rupert Jackson’s crisp and urgent message about case management and costs control into a confused jumble. The front-line troops are the case managing judges and the lawyers who are trying to work out what they are supposed to be doing to comply with a regime whose implications, they know, include fierce enforcement provisions. At the time of writing, the enforcement provisions in Rule 3.9 have (just) been published, but the new eDisclosure rules have not. You can therefore, theoretically at least, be punished for non-compliance with rules which you cannot easily find.

The Jackson reforms have attracted a great deal of comment, much of it from people who know what they are talking about in their various specialist subjects; we have also heard a lot from people who are less knowledgeable, from some who conflate a range of changes (including those to Legal Aid) under the label “Jackson”, and from some whose position is like that of the early 20th Century judge who said “Reform! Don’t we have problems enough already?”.

A clear message from the Master of the Rolls about CPR enforcement

You might perhaps be forgiven for thinking that the case management parts of the Civil Procedure amendments won’t really affect you. It is not just that their launch has been confused, to use a charitable term; those who came through the 1999 launch of the CPR found the courts willing to accept excuses for non-compliance thanks to a (largely unspoken) idea that the interests of justice required leniency in the face of “mere” procedural defects.

This is one of the points addressed by Lord Dyson, Master of the Rolls, in a speech delivered on 22 March to the District Judges Annual Seminar.  The amendments, it is clear, do more than introduce specific procedural requirements; the change of culture from the post-1999 world – “the new philosophy” he calls it – which was the focus of the MR’s speech lies in this sentence:

“Tough rules but lax application; tough rules but a culture of toleration; and lax application and toleration are all fatal to the new philosophy”.

What Lord Dyson calls the “Mark II overriding objective” includes an express reference to “proportionate cost”. Proportionality has, in theory at least, underpinned the rules since 1999. In the context of disclosure, the narrow definition of a disclosable document, the restraints on the duty of search, and the reminder, in two important cases, that parties are not required to look under every stone, are all part of this. It is equally the case that the existing rules expect compliance, yet we now have a new Rule 3.9 which addresses (and not in a good way, some would say) relief from “any sanction imposed for a failure to comply with any rule, practice direction or court order”.

Challenges to meet and not just threats in the Jackson reforms

A senior clinical negligence barrister suggests that we think positively about the Jackson reforms.

Shortly after the UK Bribery Act passed into law, I took part in a London panel about its implications. At the Q&A session at the end, a solicitor launched into a diatribe about the Act which I interrupted rather roughly. The time for consultation had passed, I said, and the Act had passed into law; there was no point in whining about it or suggesting that things might have been done differently; the object of the panel and its Q&A session was to focus on how to deal with it.

An article by clinical negligence barrister Nigel Poole QC makes similar points about the Jackson reforms and, indeed, draws attention to potential benefits from the changes. His article is headed Singapore Spring – Clinical Negligence Litigation after 1 April 2013, but it has interest beyond that specific area of practice. The Singapore reference is to Lord Justice Jackson’s enthusiasm for the case management regime in that jurisdiction. There had been much grumbling, Jackson said, when the new rules started to bite, but lawyers had come not merely to accept them but to find more work as litigation became more efficient and affordable. Nigel Poole summarises this with the sentence “if the courts give lawyers and experts the hurry up, that might just be good for clients.”

The definitive version of the CPR amendments – definitive for this week anyway

The launch of the Amendments to the Civil Procedure Rules has been a shambles, and court users can be forgiven for confusion. We needed decisive leadership at this point, something consistent with the attitude which case managing judges are now supposed to be taking towards those who do not follow the rules. If the execution matches the launch, then we have months of chaos ahead of us. This is not what Lord Justice Jackson intended, and it almost certainly would not have happened if he had not been taken off the scene by illness.

We now have the latest formal amendments to the amendments to the rules, so let’s catch them before they are in turn amended. My focus, here as everywhere else, is on case management as it applies to electronic disclosure and as to the costs estimates which have survived the successful bid for exemptions from the intended new costs management regime (I think perhaps the judges who rebelled against cost management overlooked the quite separate requirement for eDisclosure estimates).

The formal rules and practice directions relevant to case management and eDisclosure are given below, both the current ones and the amendments. Until 1 April, the Rules in force are the 59th Update. Be aware at that the time of writing, CPR internal links to PDs 31A and 31B are to old versions (that is, they have “old” in their urls). The links below are to versions not marked “old”, which I found via Google (as one does). I have not proof-read the one against the other; neither would yet reflect any 1 April updates.

This index is solely to material on the Ministry of Justice site. More follows.

General Counsel Institute eDisclosure Conference in London 17-18 April

I am one of four chairmen at a conference run by Today’s General Counsel Institute and called eDisclosure for the Corporate Market “The Exchange”. The others are Browning Marean  of DLA Piper US, George Socha of EDRM fame and David Kessler, an eDiscovery partner at Fulbright & Jaworski.

The event is aimed at corporate counsel and their staff, and its format is rather different from most such conferences. With a few exceptions, instead of platform talks and panels, we have round-table discussions led by moderators with eDisclosure experience in law firms, companies and providers as well as the judiciary in the form of Senior Master Whitaker.

The list of Moderators is here and here is the Agenda.

The format is one which has been very well received in the US, focusing less on didactic pronouncements and more on client objectives. Regular readers of this site will be aware that, whilst I do not downplay the burdens and risks of electronic disclosure, I am more interested in how one can use the rules for positive reasons and on the increasing overlap between the courts’ objectives and those of the clients.

Jackson-empowered judges ready for the new regime – and its benefits as well as its burdens

An article by Rachel Rothwell in The Law Society Gazette shows that there are some judges who will be making good use of the case management powers given to them by Jackson, and reminds us that there are potential benefits as well as some fairly onerous duties ahead.

You may have observed that I have been less than complimentary about the introduction of the Civil Procedure (Amendments) Act 2013 which crawled onto the statute book a few days ago only to be amended immediately.

Having waited breathlessly for the definitive version and then rushed to produce a summary of it, I have now had to edit my post to reflect the changes, and have written an article, sarcastic even by my standards, about judicial reluctance to get involved in costs management.

Put succinctly, a judge who purports to impose proportionality without having some idea of the costs which are about to be incurred – it is the “about to be” bit which matters here – is looking at only half the story. Proportionality is like a seesaw in multiple dimensions – it has the objective (of clients as well as court) on one side and the costs on the other; it has quality and completeness on one side and costs on the other; it has risk (in the sense of oversight or omission) on one side and costs on the other. To abrogate responsibility for budgets seems to me to be a dereliction of duty.

Use of technology-assisted review and costs-shifting in US patent case has UK parallels

One of the main differences between the Federal Rules of Civil Procedure and the Civil Procedure Rules of England and Wales is that England and Wales is a costs-shifting jurisdiction by default. That means that the winner can expect to get a significant contribution to litigation costs from the loser. This, theoretically at least, acts as a brake on unnecessary expenditure because all parties have a contingent interest in the others’ costs.

Much of the focus of Lord Justice Jackson’s reforms has been on quantifying and controlling the recoverable costs – parties can spend what they like (as long as they do not run up unnecessary costs for opponents) but are limited in what they can recover if they win. Although the budgetary constraints envisaged by Lord Justice Jackson have been emasculated in part by judges reluctant to sully their hands with questions of costs, eDisclosure costs remain subject to tight control, with parties required to cooperate to limit the scope of disclosure, to agree the tools and techniques to be used and to estimate the costs of managing disclosure (see my recent article Costs management shambles defies parody but case management still has teeth on this).

The US has a more ambivalent approach to costs-shifting, with variations between states and a distinction drawn between lawyer fees and eDiscovery costs.  Judge Grimm suggested at Georgetown that we may see moves towards codification of the rules in a way which will put more parties at risk of having to pay their opponents’ costs, including (I assume) eDiscovery costs.

Costs management shambles defies parody but case management still has teeth

So, what is the overall effect of the implementation of the new Civil Procedure Rules in so far as they relate to case management, eDisclosure and budgets? Oh, I was hoping that you would tell me.

During last week, I started writing a parody, equating judicial reactions to dangerous modern concepts like budgetary control to the reaction of the peers, known as the “Backwoodsmen”, who showed no interest in the legislative process until Lloyd George threatened their very existence in the second General Election of 1910. At that point, they turned up at Westminster in their ancient tweeds, promising to “die in the last ditch” (thus their alternate name, the “Ditchers”) to defend the old ways. Tom Lehrer famously said that satire became obsolete when Henry Kissinger was awarded the Nobel peace prize. I now feel much the same about writing a parody about judicial reactions to modern commercial practices.

Someone yesterday said on Twitter that she had been embarrassed about her inability to understand it all until she realised that everyone else was similarly at a loss.

Put briefly, the long awaited Jackson reforms, whose outline has been known for nearly two years, did not go before Parliament until last week, when they were approved. They take effect on 1 April. One amendment had been agreed even before that approval, relating to costs incurred prior to the new regime. What emerged this week was evidence of a judicial rebellion resulting in agreement “on further reflection” to exempt the Chancery Division, the Technology and Construction Court and the Mercantile Courts from the strict budget obligations, an exemption which applied already to the Commercial Court and the Admiralty Court. It appears that their Lordships in the other divisions were worried that they might lose business to the exempt courts. The whole thing was rather reminiscent of the way in which one supermarket chain objects to the grant of planning permission to another on grounds which are dressed up as being objective but which amount to a kind of protectionism.

I will write more fully about all this when the dust has settled. For the moment, those who are interested might like to run their eyes over the following:

The amending legislation itself

My article extracting those parts of the rules of specific relevance to eDisclosure and case management

A much more comprehensive article by Kerry Underwood called Costs Management Orders Including the new CPR which, like my article, predates the latest developments

A litigationfutures article by Neil Rose called Major widening of costs management exemption for commercial cases.

A note (its formal status is unclear and it is just called “this document” signed by the President of the Queen’s Bench Division and the Chancellor of the High Court setting out, and purporting to explain, the extent of the backtracking.

The problem, apart from the overriding sense of utter shambles, is that amending statutes can be confusing enough with their necessary cross-references, removals, additions and replacements. The “document” with its extended exemptions, its side-reference to a £2 million ceiling which appears (don’t ask me) either to claw back part of the exemption or to qualify the original position (I assume in fact that it relates to the surviving cases in the QBD), and its conclusion that “it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so” leaves me unwilling to express a definitive view on what applies where.

Let’s be clear on this though:

There is no change to the provisions relating to pre-CMC exchange of information, and about attempts to reach agreement on the scope and on the method of giving disclosure.

These include an obligation to estimate the costs of disclosure – it is not clear whether their Lordships overlooked this in their scrabble to be relieved of budgetary considerations, but I see nothing in the amending “document” which affects this.

We can expect to see strict enforcement of the obligations – so far as I can see, the judges have no room to wriggle on this. As it happens, I am not in favour of over-strict enforcement of these provisions, recognising that many will face genuine difficulty in the first few months. That, however, is what the rules say, and a judge really has no alternative but to take a strict line.

Being objective about this, the judges are not the only ones with doubts about budgets. Many lawyers involved in big commercial cases think them irrelevant and others appeared to accept that the whole idea is beyond them. Well, if they can work out which cases, at what level of claim, can properly be taken to which Division, then they can duck that part of the problem for the moment. I do not myself see what is so special about litigation that it should be exempt from the normal principles of commercial risk assessment, but the Ditchers and Backwoodsmen have carried the day for the moment. Let’s see what happens as we spend another two years trying to take a proper stab at the subject. With any luck, we will see some key retirements over that period.

As always, I am more interested in the benefits rather than the burdens. Clients will like the idea that costs are being controlled, not least the costs of opponents which they might themselves have to pick up one day. Lawyers who can show that they are on top of budgets and metrics put themselves in a position both to win clients and to impress their opponents into settlement by their grip of the new rules, their understanding of the implications, and their knowledge of the “tools and techniques” (as Practice Direction 31B puts it).

As I say, I will write more about this in due course.

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Preservation and proportionality on the agenda for US litigation

There is a lot going on in the eDiscovery / eDisclosure world at the moment, what with new Civil Procedure Rules in England and Wales, and with products, appointments and webinars to write about and conferences to plan for.

There has also been a stream of interesting articles which are worth passing on. I would normally seek to add some value with commentary of my own rather than merely give you hyperlinks, but they come thick and fast, and it seems better to pass them your way whilst they are topical rather than wait for an opportunity to expand on them. Besides, the articles in question have plenty of meat of their own and I do you no great service by adding more.

The subject is pending revisions to the Federal Rules of Civil Procedure, a subject which I have already covered in an article called A new definition of relevance in US eDiscovery? which was itself based on an article by Ralph Losey called Georgetown Part 2: New Rules are Coming! There was a curious lull after that, with relatively few US commentators seizing on two points in particular which seemed to me of significance – the proposed express incorporation of proportionality into Rule 26(b)(1) and planned amendments to Rule 37(e) which aim to clarify the “safe harbor” from sanctions where documents are deleted as a result of a “routine, good faith operation” of computer systems.

The problem (or one of the problems) with these areas is the lack of precision implicit in both. Preservation decisions turn on the “reasonable anticipation” of litigation, and anything involving the word “reasonable” involves a degree of subjectivity. Where a client is contemplating a voluntary but irrevocable decision such as the deletion of data, the average lawyer will err on the side of caution in circumstances where severe sanctions may be invoked against the client.  The present wording of Rule 37(e) gives too much scope for “average” lawyers to take refuge in the safe course which urges clients to keep everything “just in case”. “Just in case of what?” the clients might ask. There are circumstances which will clearly warrant sanctions; there are those which equally clearly do not; there are grey areas. The lawyer’s job is to discriminate between them where too many simply give the risk-free advice to keep everything (and take a fee for giving it).

The Civil Procedure (Amendment) Rules 2013 relating to disclosure and case management

This post has been amended to take account of the alterations announced AFTER the Civil Procedure (Amendment) Rules had been approved by Parliament. If that part of this post which relates to costs management has lost some clarity as a result, I would not be a bit surprised. We wait for the whole lot – statute, the “document” which announced the results of “further reflection”, the amended Rule and Practice Direction 3D. Then no doubt we will start seeing some case law as parties and courts try and work it all out.

Note that the case management provisions relating to Disclosure remain intact; they include a duty to estimate the costs of giving Disclosure. Note also that the “document” giving notice of the amendment ends as follows:

Subject to the limited exceptions which will be dealt with in the direction, it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so. Even when the exceptions in the rule and the direction apply, the use of costs management should always be considered

See my article Costs management shambles defies parody but case management still has teeth.

The Civil Procedure (Amendment) Rules were published yesterday. They cover a wide range of matters, all to take effect on 1 April (subject to certain specific transitional provisions relating to discrete sections).

I give below the parts of most interest to those concerned with disclosure, case management and budgets. It is notoriously difficult to copy sections from statutes, particularly amending statutes, partly because their effect can be obscured by the (wholly necessary) cross-references to existing sections and other changes, and partly because of the “clever” way that text editors seek to renumber paragraphs and sub-paragraphs once divorced from the structure of their source.

Section 4

Insert the words “at proportionate cost” into the definition of the Overriding objective in Rule 1.1 and “enforcing compliance with rules, practice directions and orders” as an additional part of the description of the court’s duty in Rule 1.2.

The latter obviously creates no new duty for lawyers or judges (those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to, as HHJ Simon Brown QC reminded us in Earles v Barclays), but signals a new toughness with defaulters.

Section 5

Active management taken to a new level:

The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court.

The Jackson Reforms encourage proportionate eDisclosure / eDiscovery in any jurisdiction

I am taking part in a panel discussion at LegalTech next week with Integreon and kCura on the subject of the Jackson Reforms. We will emphasise that the rule changes generally reflect duties to which lawyers are subject anyway, and in any jurisdiction, to find the best tools and techniques for conducting disclosure / eDiscovery proportionally.

I pointed yesterday to an observation by Mr Justice Ramsey that there will be “a few sweaty palms” as lawyers face the forthcoming changes to the UK’s civil procedure rules. Collectively known as “the Jackson Reforms” after Lord Justice Jackson who inspired most of them, they have also acquired the nickname “the Big Bang” thanks to a decision to roll out all the changes together.

This seemed a mistake to me when it was first announced 18 months ago, and it seems even more misguided now that we are a few weeks away from the implementation date and have yet to see the final form of the rules. I wrote about that in my article Uncertainty means expense as we wait for the Jackson rules.

The combination of fear and heightened expectations which results from this obscures the fact that the rule changes relevant to the disclosure aspects of case management are radical only in that both judges and lawyers have ignored the rules as they stand – a point which Lord Justice Jackson emphasised in his Review of Litigation Costs. They also reflect what both clients and courts should expect anyway.

Uncertainty means expense as we wait for the Jackson rules

An article by Neil Rose on the litigationfutures site is headed 10 weeks until Jackson and still no rules: LSLA chief warns of chaos. The reference is obviously to the wide-ranging reforms to the Civil Procedure Rules due to take effect on 1 April. The LSLA is the London Solicitors Litigation Association, whose president, Francesca Kay, does not understate things when she describes this as “wholly unacceptable”.

The case management aspects of the rules which relate to eDisclosure include the extension to a wider range of cases of the duties to discuss eDisclosure, a “menu option” which replaces the present default of standard disclosure, express emphasis on the judicial duty to direct the methods for giving disclosure and, of course, the new budget provisions.  Or so we believe – until we actually see the rules, we can only assume that they will follow what was said in Lord Justice Jackson’s speeches of last year, but for which we would be entirely in the dark. Even if the form is identical, we have yet to see the all-important transition provisions.

Lord Justice Jackson has, of course, been seriously ill, and it is no reflection on him that there has been this delay.  The Civil Procedure Rule Committee has all the drawbacks, as well as the alleged advantages, of a composition intended to reflect every group with an interest in the rules.  The downside of such bodies is that everybody wants to be heard, whether they have anything to say or not.  It would be good sometimes, on such committees, to hear someone say “I know sod all about this subject, so I’ll keep my trap shut”, but it never seems to happen.

The actual drafting lies with the civil servants in the Ministry of Justice, some of whom – how shall we put this? – are better than others. One suspects that for many of them the allure of the 17.50 to Esher outweighs the needs of court users.

Litigation solicitors, trying to give strategic advice to clients whose cases will be affected by the rule changes, really do not care who is to blame.  It is known that the policy intent behind the rules includes more stringent enforcement of them, and it places an intolerable burden on judges, as well as on court users, that the final form of the rules has yet to appear. The whole purpose of the changes is to reduce costs, but this delay, and the compliance scramble which will ensue, is bound to cost someone – the client or the lawyers (but not the civil servants of course) – significant sums of money.

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Impatient US judges push lawyers to be more proactive in early stages of litigation – what about the UK?

Two articles in succession came under my eye at the same time, one a report of a US judicial panel, the other a summary of pending rules changes in England and Wales. I was going to write separate articles about each of them but, as I read them, a common theme appeared about the roles of judge and lawyers in relation to the management of eDisclosure / eDiscovery.

I did not go to the Georgetown Law Advanced eDiscovery Institute held in Washington at the end of last week. I actually reserved a flight, but cancelled it when I realised how much travelling I would be doing in November.

As it turned out, I barely had time even to read the live tweets from Georgetown and, in any event, I can be reasonably sure that others will record the key points. First out of the traps, as always, was Monica Bay of Law Technology News with an article Impatient Judges Push Lawyers to Dive into E-Discovery and the subtitle Lawyers need to be more proactive in early stages of litigation, judges preach.

At the same time, New Law Journal has published a helpful article by Garry Bernstein of First Advantage Litigation Consulting. Called Held to Account, it summarises simply the practical effect for lawyers of CPR 31.5 which is due to take effect in April 2013.The common thread between the two articles is the role of judges in managing eDisclosure / eDiscovery, and the duty of lawyers to inform themselves, each other and the court, and it is these things on which I focus here.

Costs management: Mr Justice Ramsay describes why it is necessary

I wrote recently about the coming regime of costs management in civil litigation – see Costs management moves closer in England and Wales.

We now have a more authoritative reference document. Mr Justice Ramsay delivered a speech a few days later with the heading Costs management: a necessary part of the management of litigation, available on the Judiciary website. The speech provides as good a summary as you could want of the reasons for managing costs from an early stage in a case, of the practical implications, and of the likely consequences of the new regime.

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Costs Management moves closer in England and Wales

I have already drawn attention to an article by His Honour Judge Simon Brown QC in the New Law Journal called Costs management & docketed judges: are you ready for the big bang next year? which describes what is to be expected by parties to civil proceedings in respect of costs budgets. The takeaway quotation is:

The days of putting in a bill at the end of a case based on a multiple of billable hours x by £x per hour and expecting to be paid are over.

I come back to the subject in case you missed a practical example of costs budgeting in action, with a result which reflects the warnings given by Judge Brown. The case is Henry v News Group Newspapers Ltd (Rev 1) [2012] EWHC 90218 (Costs) (16 May 2012) and the title of a Legal Futures article says it all: Senior Costs Judge disallows budget overrun in landmark costs management ruling.

That article links in turn to an explanation by Andy Ellis, the costs lawyer who acted for NGN. Again, its title tells you all you need to know – Actual – Budget = Catastrophe.

As the Senior Costs Judge explained in his judgment, the case was dealt with under the Defamation Proceedings Costs Management Scheme.

Last in this set of links is one to a Daily Telegraph article headed Hourly billing for lawyers should end, says top judge which reports a speech by Lord Neuberger whose message is clear enough. The central point is reported thus:

[Lord Neuberger said] “Hourly billing at best leads to inefficient practices, at worst it rewards and incentivises inefficiency.”

He said it penalises those who are able to bring cases to a close quickly, adding: “It also penalises the able, those with greater professional knowledge and skill, as they will tend to work at a more efficient rate.

“In other words, hourly billing fails to reward the diligent, the efficient and the able: its focus on the cost of time, a truly movable feast, simply does not reflect the value of work.”

He said: “In practical terms, any business which bases its charges simply on costs does not deserve to succeed, or even, some might say, to survive.

Lord Woolf said something similar in his report which gave rise to the 1999 Civil Procedure Rules. This time, the nettle is to be grasped.

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Articles on eDisclosure, eDiscovery, Cooperation and Privacy by UK and US Judges

For reasons which I may explain separately, I had banked on the Easter period being quiet on the eDiscovery front. On the whole, that hope was justified, with Twitter relatively quiet, few interesting things to pass on, e-mail volumes down, and almost no phone calls.

What did appear just before the break, however, were no fewer than four important and interesting articles by judges, two from England and Wales and two from the US. I group them together here with the briefest of introductions – none of these people need much help from me to get their messages across.

The UK articles are written by HHJ Simon Brown QC and Senior Master Whitaker who, apart from Lord Justice Jackson, are the two judges best able to cover this ground (that is not saying that they are the only ones who are competent to adjudicate on eDisclosure and case management issues, but only they articulate views for the guidance of court users).

Both these articles appear on the New Law Journal site which is increasingly the source of choice for those who seek thoughtful commentary on litigation matters (and on other practice areas, no doubt). The NLJ has recognised the importance of these two articles by making them free to view.

Using a neutral third party to resolve or prevent disclosure disputes

One of the most useful UK resources about electronic disclosure is Clive Freedman’s electronic disclosure wiki at www.eDisclosure.uk.com.

Clive Freedman is a barrister at 3 Verulam Buildings and is (as I am) a member of Senior Master Whitaker’s working party which produced the eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire. It is he who shouldered the burden of translating our deliberations into drafts and who, with Master Whitaker himself, set out to ensure that the practical and technical inputs were made to fit within the formal and procedural requirements imposed by the conventional structure of the Rules.

Clive’s website provides links to the relevant rules and practice directions and other sources of relevant materials, and adds references to cases in the courts which deal with eDisclosure. If it is my role to provide the narrative, Clive provides the nuts and bolts.

Clive has recently added a new section to his website with the heading “Using a neutral third party to resolve or prevent disclosure disputes” in which he discusses how a neutral may be able to assist the parties, with a view to minimising the delay and expense which may arise where parties are unable to reach agreement.  It is relevant in this context to know that he is a Fellow of the Chartered Institute of Arbitrators and an experienced mediator of IT disputes.

His new section sets out the passage from Lord Justice Jackson’s Preliminary Report about the possibility of using what were referred to as ”disclosure assessors”. Such a person could, Lord Justice Jackson said, ”immerse himself/herself in the issues and the primary documents and identify which categories of documents on both sides truly merit disclosure” as well as dealing with other disputes relating to disclosure.

As Lord Justice Jackson’s Final Report says, this suggestion aroused strong views on both sides. I personally support the idea, partly as a remedy for the lack of specialist skills amongst case managing judiciary, and partly because of the US experience of Special Masters who perform an analogous function.

For the moment, anyway, there is no provision in the Rules for the role of disclosure assessor. Like so much else, however, there is no reason why parties should not appoint such a person by private agreement in an appropriate case, ”appropriate” generally implying that time and costs are to be saved by the joint instruction of a neutral person to stand between the parties, with an understanding of the Rules, the parties’ objectives and the techniques (a wider concept than mere technology) which might be used to cut down the disclosure burden.

It takes a particular type of skill to fulfil this role, and it is not one I seek for myself. Clive, however, does have the necessary experience, and is ready to use it to assist parties in minimising delay and expense.

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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.

Another indemnity costs order for eDisclosure failures

By coincidence, we have a second UK judgment in a few days which ends with indemnity costs being paid by a party for failing to comply with its disclosure obligations.  Mr Justice Akenhead’s judgment in Phaestos Ltd & Anor v Ho [2012] EWHC 668 (TCC) (16 March 2012) begins with this:

This revised case management hearing was fixed on Wednesday for an hour-and-a-half, starting at 8.30 in the morning. It was listed for an hour-and-a-half and the purpose was, as I made clear on Wednesday, that the Court should finally deal with, and dispose of, issues relating to the scope of electronic disclosure on the part of the claimants, primarily. It is clear that substantive agreement on the defendants’ electronic disclosure had been reached.

…and it ends with this:

It is agreed that the costs of, and occasioned by, the claimants’ application earlier today should be borne by the claimants in any event. The only issue is whether it should be on an indemnity basis. I am wholly satisfied that this is an appropriate case for an indemnity basis. The court has made it clear, on at least two previous occasions, and probably more, that the question of electronic disclosure and any issues arising out of it were to be dealt with at the latest by the end of this particular week, preferably earlier. Earlier orders talked about getting it resolved on or by 5th March 2012 ….The claimants and their solicitors, collectively, have had more than enough time to “get their act together” on this…

The CPR Standard Disclosure test is a strict one says the Court of Appeal

Disclosure in UK civil proceedings, with or without an “e” at the front of “disclosure”, is not a game for amateurs, raising serious points about the strict interpretation of a deceptively simple-looking rule as well as practical considerations – and that is before you get to the technology. If UK lawyers can learn something from Shah v HSBC Private Bank, US litigators will see one reason why UK disclosure is so much narrower in scope than the bloated excesses of US discovery.

I am obliged to Ashurst for the case summary which tipped me off to the judgment covered here. The case is Shah & Anor v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (13 October 2011). The claim itself concerns a delay in banking transactions which occurred because the bank suspected money-laundering and felt obliged to make authorised disclosures under the Proceeds of Crime Act 2002.

The application which came before the Court of Appeal concerned disclosure under the Civil Procedure Rules. Two questions arose: did the bank’s standard disclosure obligations require it to reveal the names of the bank employees who were involved? If they did, was it entitled to preserve that anonymity by redacting those names on the ground of public interest immunity?

The court (the main judgment is from Lord Justice Lewison) found for the bank on a strict interpretation of Rule 31.6, the definition of standard disclosure; the PII point effectively dropped away.

The paragraphs numbered down to 18 are a recital of the underlying facts. The claimants wanted to know the names of the individual employees involved in complying with the POCA requirements and with the bank’s internal procedures. The question arose as to whether this information was “relevant” although, as we shall see, this is in fact the wrong question.

Postscript to Dominic Regan interview on Jackson and costs management

The transcript of my interview with Dominic Regan (see Professor Dominic Regan on why the Jackson Reforms mean the biggest ever upheaval for UK litigation) seems to have attracted some attention. There are two follow-up links in which you may be interested, both to points referred to during the interview.

The first is Dominic’s interview with Lord Justice Jackson which he has now written up for New Law Journal under the heading Jackson on Jackson. Those with an interest in electronic disclosure will focus on two things – the promise of training for judges in costs management and this blunt warning to practitioners towards the end of the article:

They should start to think about costs budgeting now and also look to embrace technology. The days of paper are numbered.

Many in my profession, I know, treat a deadline as the starting gun. I remember fondly my conversation with a law firm partner six months after the UK Bribery Act came into force. I mentioned it as a reason for lawyers to become acquainted with the technology which exists both to identify deviations from the norm in a proactive way and to enable efficient reaction to requests by regulators or prosecutors. “The Bribery Act”, he said. “Ah, remind me…”.

Late eDisclosure application tacked on to pre-trial review at a cost of £47,000

Court decisions about procedural hearings rarely tell the full story. There may be all sorts of reasons why two good firms of solicitors should find themselves, three months before a 10-day trial, at a pre-trial review onto which had been tacked a specific disclosure application and an application to strike out parts of witness statements. There may also be good reason why one of those parties had clocked up £47,000 in costs – “a very large sum of money for a one hour application” as the judge said mildly.

The case is Omni Laboratories Inc v Eden Energy Ltd, and the hearing came before Mr Justice Akenhead in the Technology and Construction Court. I am obliged to His Honour Judge Simon Brown QC for drawing my attention to it.

The ruling is short and I will leave you to read it, merely pointing to the points which appeal to students of case management.

Rapporteur rounding up the Singapore Electronic Litigation Conference

It was a privilege to be asked to be one of the rapporteurs at the end of the International Electronic Litigation Conference in Singapore. Bryan Ghows of UniLegal LLC spoke to one group and I the other, with ten minutes to round up the proceedings. Unusually for me, I actually wrote down in advance what I intended to say, and I give it here as the finale to my series of articles about this excellent conference:

It is proper, at an occasion like this, to address by name or title all the most important people in the room. There are many of you and I have only ten minutes so I will instead simply address “Kind hosts and welcome guests”.

I should say that listening to speeches during lunch is one of my pet hates at these conferences – you have just got a good flow of conversation going and then have to break off and listen to someone speaking. I tried to get out of it by suggesting to Senior Assistant Registrar Yeong Zee Kin that an audience of this calibre does not need to be told what they have just heard, but he said it was proper and it is there in the programme. There is, perhaps fortunately, not much time, so I will pick what seemed to me to be the most lasting points.

Lord Justice Jackson in Singapore: Piloting Civil Justice Reforms

The best judicial advocates of proportionate electronic discovery emphasise that, however significant the costs and other implications of discovery, they are but a part of a wider duty to make justice affordable. That duty is distributed – it lies with the judges charged with managing cases and those who devise the rules and procedures; it falls on lawyers and on their clients whose justice is at stake; it is part of the duty of government. Lord Justice Jackson touched on all these in a speech in Singapore which began with Plato and Aristotle and, precisely 45 minutes later, came back to them. The occasion was the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law.

I do not usually rush out reports of speeches on the day of their delivery, preferring a more leisurely approach with reflective comment. This is a straight transposition from my notes, with little critical or or analytical thought applied.

The evidence in Aristotle’s day, Sir Rupert said, fell within a manageable compass. The instant communications now critical to business were not a boon in all respects. They remain in permanent form to be studied by those with the time and motive, subjected to a full and painstaking analysis by lawyers, and generating “prodigious and sometimes terrifying costs”.

The Discovery skills of Hong Kong cab drivers

I am in Hong Kong, having just finished the two-day InnoXcell eDiscovery conference. The purpose at these conferences – my purpose anyway – is to encourage lawyers to know their way around the rules, the practice and the technology so that they can set off in the right direction. The rules have more flexibility in them than most people realise; the technology advances in ability and reduces in cost in a way which keeps pace, more or less, with the increases in volumes. Lawyers acquire a certain confidence if, as well as knowing the facts and understanding the issues, they can use the rules to their advantage, estimate the costs and have at least some idea of what technology exists to help them to help their clients to their objective. Electronic documents holds the evidence, and knowing how to give discovery is a primary litigation skill.

Relatively few lawyers have this array of skills and knowledge, whilst purporting to offer a litigation service in which the costs and other implications of electronic discovery/disclosure are usually the biggest single component. Hong Kong taxi drivers offer a parallel.

Judicial Panel at CEIC has messages for other jurisdictions

Although primarily a forensics conference, CEIC, the Computer Enterprise and Investigations Conference, has an e-discovery track whose purpose is to raise awareness of the context in which data forensics are used beyond the law enforcement where they began. The cross-border panel  in which I took part was one aspect of this. Another regular feature is a judicial panel which was moderated, as usual, by Patrick Burke of Guidance Software.

The panel comprised former US Magistrate Judge Ronald Hedges, now a Special Master, US Magistrate Judge David Waxse and Hon. Donald E. Shelton, Chief Judge – Washtenaw County Trial Court, Ann Arbor, Michigan. Ron Hedges also introduced his pink friend, seen in the photograph below, but we never got to find out what his contribution was to the debate – the others had more than enough to say in the 90 minutes allocated.

These inevitably focus on practice under the Federal Rules of Civil Procedure. Some terminology apart, however, what was said applies equally in any jurisdiction

UK Government bids for a world-class legal reputation whilst neglecting the basics back home

The UK Ministry of Justice has launched a paper called Plan for Growth: Promoting the UK’s Legal Services Sector. The opening, at least, is admirably crisp for a civil service document:

It identifies the law as one of Britain’s strengths….

People turn to us because they know they will find world class, highly specialised practitioners and expert judges in the specialist courts. They understand that a decision from a court in the UK carries a global guarantee of impartiality, integrity and enforceability.

…. which is a major contributor to the economy….

These strengths help to explain why the Legal Services sector generated £23.1 billion or 1.8% of the UK’s gross domestic product in 2009 and constituted £3.2 billion in exports – nearly three times more than a decade earlier.

….but which faces competition:

…worldwide competition for legal services is set to intensify over the coming decade. New York, Stockholm, Paris, Geneva, Dubai, Singapore and Hong Kong all stand ready to compete with London and other UK jurisdictions as a hub of legal expertise. While the UK’s excellence and reputation is undoubted, costs and speed may affect where companies choose to resolve their disputes. We intend to do all we can to protect our competitiveness and build on our success.

Steps are to be taken as part of the Government’s Plan for Growth…

the Ministry of Justice is committed to working closely with UK Trade & Investment and the sector to promote the UK as the global centre of legal arbitration and commercial law services.

As part of this we have a fine new Commercial Court building:

Dedicated, high-spec business court under one roof – the Rolls Building brings together the Chancery Division, Technology and Construction Court and Commercial Court under one roof, offering a streamlined service to businesses and maintaining the UK’s reputation as first choice for business law.

LexisNexis e-disclosure webinar pulls in the crowds

2090 people registered to watch a video webinar on e-disclosure and privilege last week. That is, apparently, the highest number for any of the successful LexisNexis series of such webinars and presumably reflects the growing interest in electronic disclosure.

The moderator was Professor Dominic Regan. Barrister Shantanu Majumdar of Radcliffe Chambers spoke on privilege and my subject was the e-disclosure Practice Direction and Electronic Documents Questionnaire which took effect on 1 October 2010.

I have always been happy to leave the subject of privilege to the lawyers – my interest is in the use of technology which delivers electronic documents to the experts for review and which makes it easy for them to identify and flag privileged documents in the same way that they indicate relevance or the allocation to an issue. Between you and me, I generally use the privilege sessions at conferences to nip out for a smoke and a chat with whoever is passing.

You cannot do that when you are wired into a studio in front of four video cameras, and I am glad I listened as Shantanu took us through legal advice privilege and litigation privilege. My recollection of my training is that we are given some broad instruction of the “you will know a privileged document when you see one” kind. Even in those innocent days long before Three Rivers District Council v The Bank of England and the cases which followed it, the subject deserved more precision.

Judge Grimm on ignorance of ediscovery rules and lack of consistency from courts

A high proportion of e-disclosure / ediscovery disputes in both US and UK courts arise because one or both of the parties does not know what target it is supposed to reach. This generally stems from one of two causes — they do not know the rules and they do not know what they might expect from the court in an area in which judicial discretion plays a large role.

The rules point seems pretty obvious to you and me although not, apparently, to the many lawyers on both sides of the Atlantic who fall foul of the rules each year and who do not know the cases. The consistency point is more subtle but just as significant. A solicitor once told me of a case where he and his opponents had argued (presumably expensively) for weeks before going to the court for directions. The answer came quickly and was not precisely what either of them wanted, but it cut through the argument and allowed them to get on. “If only we had known what to expect” they said, making the point that the argument could have been avoided if they had had some idea of the kind of orders available from the court. Consistency is, in a sense, antithetical to discretion, but we do need to be able to anticipate what kind of orders we might get.

These two factors, knowledge of the rules and consistency from the courts, are identified by chief US Magistrate Judge Paul Grimm in an article in the University of Richmond’s Journal of Law and Technology (JOLT). His immediate context is the two-year old Federal Rules of Evidence 502 which aimed to encourage lawyers to co-operate to reduce the costs of production of electronically stored information.

This article reached me via a posting by Monica Bay on the revived EDD Update and I refer you to that rather than directly to the JOLT article so that you get the benefit of Monica’s commentary on the way.

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You do not need the fear of sanctions to get value from legal hold software

I am doing a panel session on Day 2 of the IQPC Information Retention and EDisclosure Managemement Summit with Ronke Ekwensi of Pfizer. Our subject is ESI preparation and preservation: Assessing – and addressing – your eDisclosure Liabilities. One of the aims is to cover the differences between the US and the UK approaches to preservation and to legal hold and I have been putting some slides together. It seems worth giving it a preliminary canter here.

Clearwell is the latest US ediscovery software company to produce a legal hold module, the logical extension to the existing components of its EDiscovery Platform. This is becoming a standard component of ediscovery applications – Guidance Software was, I think, the first to integrate such a module over two years ago.

A US lawyer needs no explanation of the importance of legal hold. It formalises the duty to preserve documents and records that an organisation “knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation”. This quotation comes from Mosaid v Samsung of 2004 and remains a good base definition although a lot of water has flowed under the bridge since then. Critics complain of the use of the word “reasonably” in qualifying both the expected state of knowledge and the degree of foreseeability, but none has come up with an alternative way of defining the trigger for preservation (though serious attempts are being made to improve on this).

The formal trigger in England & Wales is the issue of proceedings. Destruction before issue brings penalties only in limited circumstances involving an objective to interfere with future litigation and a positive act as opposed to an omission; further, the documents must be relevant ones, that is, ones which might have made a difference. The key issue is whether a fair trial is possible despite the destruction of the documents. Taking all this together, it is quite hard to attack another party for alleged spoliation before the commencement of proceedings. That said, the parties and their lawyers may have to explain what became of “missing” documents and to justify their destruction.

There are differences between the scope of US discovery and UK disclosure. “Relevance” in the US includes information which is reasonably calculated to lead to the discovery of admissible evidence, where the post-1999 UK definition is the potentially much narrower test whether documents are supportive of or adverse to the case of the giver or of any other party.

Metadata and Data Exchange Formats in Electronic Disclosure – a US model for a common-sense approach in the UK

UK lawyers are rightly sceptical about the relevance of US e-discovery rulings to their own cases. Occasionally, however, one comes along which is grounded in universally-applicable common sense or which throws light on some basic technological point which has not been tested in the UK. Judge Shira Scheindlin’s ruling in the Day Laborer case is one such.

Every so often, a US ediscovery case appears which is illuminating to UK lawyers dealing with e-disclosure. I put it like that, because many US cases have the opposite effect when recited to a UK audience. The general principles are broadly the same, but most US cases rely on terminology and principles – of “sanctions”, “defensibility”, “preservation” and “legal hold” – which all have their equivalents here but which we decline, so far at least, to get quite so worked up about. If the US thinks us backward as a result, then we are content to be thought so. Some of our key principles – that you do not have to look under every stone when searching for disclosable documents, for example – are near-heresies in the US.

They will come to our way of thinking eventually and, meanwhile, we have quite enough to do at a more fundamental level. When Lord Justice Jacob challenged the view that “No stone, however small, should remain unturned” (Nichia v Argos, at paragraph 50), he was enunciating a principal vital to the meaning of proportionality which needs to be clearly understood; he did not mean that we could ignore electronic documents completely if it all looked a bit complicated. Master Whitaker’s judgment in Goodale v the Ministry of Justice simply applies existing principles of proportionality, active management, discretion and co-operation which, if understood correctly, could reduce the cost of electronic disclosure in almost any case. The new Electronic Disclosure Practice Direction 31B is neither complicated nor technical, and is easily understood by anyone who bothers to read it – as some commentators may care to before they next criticise it as unduly burdensome. Let’s bite that lot off before we start inventing new problems to conquer.

Whilst most US ediscovery cases are of limited appeal in the UK, we have the luxury of picking and choosing the bits we like – as in fact do US courts, since most of the Opinions are merely persuasive rather than binding outside the court in which they were made. Some Opinions give us painstaking explanations of basic facts which are relevant and helpful in any jurisdiction, and one of those is Judge Shira Scheindlin’s Decision in the Day Laborer case (National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2 011 WL 381625 (S.D.N.Y. Feb. 07, 2011) which was about a Freedom of Information Act (FOIA) request. It concerns the exchange of metadata and other matters relating to the form in which documents are handed over to the other side and, in looking at it from a UK perspective, I am going to skip most of the differences between our respective systems, the controversies over Judge Scheindlin’s ground-breaking opinions on other matters, and broader questions about lawyers’ discovery /disclosure duties, and just focus on metadata.

Davis v Grant Park – EDiscovery Sanctions just like the Advantage Rule in Rugby

I am keen on parallels and analogies which help illustrate serious subjects by drawing on historical, fictional,  cultural or any other references which may throw light on (or at least help us to remember) things we ought to know. The brief summary of US Magistrate Judge Facciola’s opinion in Davis v Grant Park on the Gibbons E-Discovery Law Alert made me think immediately of the rules of Rugby Union. There are parallels between the penalties in court and on the rugby pitch, and a side-wind brings me an Australian connection which fits my theme.

I have talked about rugby before, on the occasion of an enjoyable day out as a guest of FTI at the Varsity Match in December. That article prompted Kate Holmes of FTI to ask me on Twitter to explain the rules of rugby, an invitation I declined on the grounds that 140 characters would barely get me started. I am not really qualified anyway to expound upon the rules, but one that I do know is the Advantage Rule. I will come back to that, and its relevance to Davis v Grant Park in a moment.

The full title to the Gibbons summary is Davis v Grant Park holds that sanctions motions for breach of duty to preserve electronic communications are premature until the close of discovery. Judge Facciola refused a motion for sanctions for the alleged destruction of electronic communications finding it “premature to consider the question of sanctions until discovery ends and the court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused”. Judge Facciola cited his own decision in D’Onofrio v SFX Sports Group, Inc., where he said:

“[i]t is only after establishing the prejudice the plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent with this Circuit’s insistence that any sanctions imposed be a function of the prejudice done to a party by its offending opponent.”

I have written before about the non-US perception of ediscovery sanctions, most recently in an article called The ups and downs of US ediscovery sanctions. I said there that “To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime”, whilst cross-referring to an earlier article which made it clear (I hope) that I was alert both to the rationale behind sanctions in appropriate cases and to the fact that (as Judge Facciola himself put it in a conference speech) judges do not wake up every morning asking “Who shall I sanction today”. For all that balance and fairness, however, the outsider’s perception is that the fear of sanctions, and particularly sanctions which are disproportionate to both the offence and the prejudice, drive up the scope, and therefore the cost, of electronic discovery. D’Onofrio and Davis v Grant Park are welcome correctives to this.

Levelling out after LegalTech

LegalTech, UK educational sessions and calls from law firms, an LPO conference, Irish eDiscovery, litigation as an invisible export, legal blogging in New York and eDiscovery in Germany all help to pass the time.

By and large, I find that the amount of work which has to be done in a year broadly matches the time available to do it. That is in part thanks to variables which I can control – the things I choose to write about as opposed to those which I must cover, and whether I go to bed at 2.00am or 3.00am – and is explained in part by a variant on Parkinson’s Law. That, you will recall, says that “work expands so as to fill the time available for its completion”. One way of defeating that is to leave important things until the last minute, ticking off the non-urgent things (which would otherwise never get done) so that the time available for completion of the urgent things is reduced. It infuriates conference organisers (for whom everything is apparently needed TODAY) but if I dropped everything to comply with their deadlines, I would never get anything done.

Sometimes, however, tasks stack up like aeroplanes at dawn over Heathrow (an example I pick with particular feeling after my last aimless circling of the Home Counties). February is invariably one of those times, thanks to the cuckoo which is LegalTech. Its three days always take at least two weeks of my life in preparing for sessions, getting there, being there and writing about it afterwards. The result is an uneven spread in my articles – I wrote six in one day just before I left but only two in the ten days after my return. I get bullied, you know. It took a while to do my report on LegalTech and, just before I published it, I received an e-mail saying “I sense some collective thumb-twiddling amongst your readers – the biggest show in town has come and gone and the site is still welcoming Digital Reef etc” (a reference to the last post which I did before I left, about new e-Disclosure Information Project sponsor Digital Reef). It is some consolation to find that Andrew Haslam has only just published his account.

It is worth, occasionally, just running through what is happening, to show how many subjects get swept together under the umbrella of electronic disclosure. It touches on a lot of topics, as the extract below from my slide set shows. I do not disdain PowerPoint, as has become fashionable, and use my slides at educational sessions to allow me to canter over the ground more or less without taking breath – the audience can always ask me back for expansion on discrete subjects.

Epiq Systems and Huron Consulting as Angels for US-UK e-disclosure play at LegalTech 2011

An “angel” in theatrical terms is someone who puts money into a play or film. Many productions would not happen without such support. I have already mentioned the judicial play which we are putting on at LegalTech and which consists of light-hearted scenes based largely on recent UK e-disclosure cases. Epiq Systems and Huron Consulting Group have kindly given the support which makes this possible.

The play – really a series of loosely-linked scenes – is an adapted version of something we did at IQPC in London last May and which, despite the levity, has the serious purpose of creating a better understanding on each side of the Atlantic of what happens in the other jurisdiction.

We have an all star cast. US Magistrate Judge Elizabeth LaPorte and US Magistrate Judge Andrew Peck play a composite judge called Fluffy. Fluffy may sound a soft touch, but those who know the first Harry Potter story will know that Fluffy is extremely fierce and guards a mystery which no one else understands.

There is, in fact, a subliminal point about Anglo-US terminology here: that book was called the Philosopher’s Stone when published in England but was re-named the Sorcerer’s Stone in the US version, apparently because the US publisher thought that children would be put off by the word “Philosopher”. US distributors have a habit of under-estimating their public (is it really true that the film of Alan Bennett’s play The Madness of George III had to be called The Madness of King George because of the fear that American audiences would think that they had missed the first two films in the franchise?). Much the same patronising logic underlay the 1999 UK rule change which abandoned the word “discovery” in favour of “disclosure”. The point is not that this jettisoned several hundred years of tradition, but that the word “discovery” embraced both the “uncovering” of your documents to opponents, and the prior, and very much bigger, exercise of finding out what you have. The proper term therefore became more, not less, appropriate as search became the dominant requirement. Those of us with feet on both sides of the Atlantic must refer continually to both terms.

The ups and downs of US ediscovery sanctions

The sanctions handed down by US courts for ediscovery failures bewilder the rest of us somewhat. To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime. I wrote about this in my article International discovery, sanctions, ethics and US-UK comparisons at Georgetown in the context of Judge Shira Scheindlin’s Pension Committee Opinion, saying:

Providers of software and services use the threat of sanctions to encourage that pen across the bottom of the order form; if none of them has yet produced an advertising picture with an axe breaking through the door to the cry of “Here’s Shira”, it can only be a matter of time. The English just gape at them; you mean you get fined massive sums of money because you didn’t send everyone in the company a legal hold letter? Because you overlooked a box of old tapes?
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Americans have rather more respect for senior office holders – judges, public servants and politicians — than we do, or respect at least for their offices, and it has been mildly amusing to an outsider to watch the legal establishment in its various forms implying, without actually saying so, that Judge Scheindlin might, you know, perhaps, have gone a little over the top in Pension Committee. An outsider can be less restrained and say that, whatever view you take of the decision, Pension Committee has elevated the fear of sanctions to the point where they have driven out proportionality.

They seem to like it. The problem which it gives us in the UK is that the inevitable obligations to disclose electronic documents become confused with the apparent message from the US that it is both dangerous and expensive to do so, which is why I spend a lot of my time drawing distinctions between the two systems. The UK is no more tolerant than the US of truly culpable omissions and failures but we have, so far at least, managed to avoid giving litigants the impression that every false move risks enormous financial penalties.

Lord Justice Jackson fights for his costs reforms

An article published yesterday in the Solicitors Journal is headed Jackson LJ demands his reforms are implemented in full. It draws attention to a letter from Lord Justice Jackson, the author of last year’s Litigation Costs Review, to Justice Secretary Ken Clarke calling on him to ensure that the costs reforms are put through in full.

The letter itself is published on the judicial website. You get the flavour of Sir Rupert Jackson’s approach from this paragraph:

….. the complexity of civil procedure is now a real problem and generates substantial costs. The new rules must be simple and clear. Any attempt to legislate for every situation is a chimaera, resulting in complexity and escalating costs.

Those who read my article of last week headed Judges defend our long-term liberties from short-term politicians will spot more than one connection here. One concerns the willingness of judges to take on politicians publicly where the interests of justice require it – there are in fact two points in one here, since the publication of Sir Rupert’s letter is a step distinct from the confrontation implicit in the letter itself; the other is the reference to “any attempt to legislate for every situation” which parallels one of Lord Judge’s complaints, reported on in my article and illustrated by his media-friendly reference to the possible variants of a particularly esoteric crime.

It is not clear, in fact, that Jackson and Clarke take different views – Clarke has been supportive, publicly at least. There are certainly powerful interests with good reason to fear the implementation of the proposed costs reforms, and civil servants are skilled in that delicate balancing act which always finds reasons for blocking change whilst creating enough work to keep them in employment.

It is good to see Lord Justice Jackson fighting his corner where a lesser man might have subsided gratefully back into his place in the Court of Appeal.

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Big cases coming for big firms – but what about more ordinary litigation?

An article in the Lawyer of 3 January is headed Top firms gear up for action as litigation tsunami hits UK . Perhaps the most interesting point made in it concerns the cost of arbitration with the corollary that the court seems still to be the most attractive option, at least for bigger cases.

As its headline makes clear, the article largely concerns a list of very big cases due for hearing in 2011. What about more “ordinary” commercial litigation, the kind with hundreds of thousands or tens of thousands of pounds at stake rather than millions? The article’s premises – that companies have “exhausted more amenable avenues” for resolving disputes, that they must fight because they cannot afford to settle, and that they are “turning their backs on the arbitration process” almost certainly apply further down the scale. The government has promised a fresh drive to encourage mediation, but the target is primarily the smaller matters. Good legal advice appropriate to the dispute is expensive whatever the forum. No-one is knocking the idea that mediation is the right approach for many cases, but the focus should be on improving the court processes, not on driving litigants elsewhere.

Many companies seem to prefer to litigate – or would do if the costs were reduced or at least made more predictable. Lord Justice Jackson drew attention to the importance of certainty, not just as to the outcome but also as to the costs implications. The lawyers who will win business – by beating their rivals but also by encouraging companies to use the courts – are those who are best able to predict costs and keep within their estimates.

Richard Susskind’s law firm technology predictions for 2011

A short interview with Professor Richard Susskind on the Legal IT web site gives a packed 12 minutes or so which is well worth listening to at the beginning of the year. E-Disclosure is covered along with iPads, social media, the cloud and outsourcing as areas in which the gap between those who look forward and those who drag their heels will differentiate one firm from another in business practices, in the eyes of the clients, and in profitablility.

Before you dismiss what Richard says as fanciful, you may care to think back to his record as a predictor of legal business practice – how, for example, everyone laughed when he said that firms would communicate with each other and with clients by e-mail, or would publish legal information for free on their websites.

His four main predictions are:

1. There will be wider take-up of the iPad and other tablets, particularly when Word and PowerPoint become available on them. Lawyers are already using them for many daily activities both at home and at work, as are their clients, and mainstream acceptance cannot be stopped.

2. Many firms will move their data and processing to the cloud. Confidentiality concerns are being addressed and, in any event, it is probable that a first-rate outsource provider will offer better security than many firms can provide for themselves. This applies to litigation as much as to other things – much litigation data is either price-sensitive or very personal; how many firms can say in a post-WikiLeaks world that they are truly confident of their own security?

3. There will be an increase in outsourcing, with whole systems, not merely data, passed to third-party providers. This is not necessarily bad news for IT staff who may find more interesting challenges (and less aggravation) if they transfer their employment out of law firms.

4. There will be an uptake in the use of social media as firms make use of LinkedIn, FaceBook and Twitter for legal purposes, as many companies – the clients – are already doing, to tell the world what they are doing, planning or thinking. This is so predictable a development that firms must get policies in place in anticipation of it. Without them they will either get left behind by more adventurous firms or will embark on the use of social media without thinking through either the risks or social media’s place in their wider public-facing plans.

Clearwell White Paper: the new Practice Direction and e-Disclosure

Clearwell Systems has published on its website a White Paper which I co-wrote with them with the title The New Practice Direction and e-Disclosure: Best practices for Complying Proportionately (registration required). Its purpose is to set out recent developments in UK electronic disclosure and to show how Clearwell addresses the requirements which arise as a result.

I can give you the flavour of it by quoting part of its summary:

If you take together the outcome of the cases mentioned above, the requirements of the Practice Direction, and the model for case management provided by the Goodale decision, you see a requirement (and it is a requirement of competence and proportionality as well as a formal requirement of the rules) that parties to litigation assemble and exchange sufficient information before the case management conference to enable themselves, their opponents and the court to make the “proportionate and cost-effective” decisions needed to control electronic disclosure. A part of achieving this goal are the four main considerations laid out in the Practice Direction and summarised above.

Before you can make decisions about narrowing the scope of disclosure, you must know what you have got, be able to evaluate which of it is worth picking out for full review, and be equipped to debate value against cost with opponents. The next section of this paper considers how this might be done as a matter of best practice using Clearwell Systems’ software.

International discovery, sanctions, ethics and US-UK comparisons at Georgetown

I was, I think, the only UK speaker (or, indeed, delegate) at the Georgetown Advanced e-Discovery Institute. If the primary reason for going was to talk about US-EU differences, there was progress made too on the continuing US-UK dialogue about our respective disclosure rules and practice. There is two-way value in seeing how others see us.

A great deal of ground was covered, much of which illuminated the divide between US and UK practice and procedure. I make no apology for the fact that the result is a rather longer article than my usual ones.

Introduction

The Georgetown Advanced e-Discovery Institute is a polite, learned event, some of whose sessions, one feels, may actually change things, not merely report or comment on them. There is certainly a mood for change, in the sense that no-one involved in US eDiscovery believes that the present approach is sustainable. An outsider sees what appear to be obvious places to start which inevitably centre round the points of differences with one’s own jurisdiction and, indeed, the UK rules came in for much positive comment, as I report below. We in the UK, in turn, need to raise the level at which we discuss the issues, and get more people, particularly judges, to engage in that discussion in the manner so impressively displayed at Georgetown. We might then see a convergence between our rules and the way they work in practice.

Any attempt to translate these thoughts into positive recommendations founders on deep cultural differences plus the knowledge that whilst the UK rules may be fit for their purpose, the practice has a long way to go. Do US lawyers and jurists bang on so much about ethics and keep each other in line with sanctions because they are more ethical than we are or less so? Do parties collect so much data because a) they really think that proportionate justice is to be found that way b) because the fear of being sanctioned has driven all reason out of litigation or c) because the lawyers and technology providers make a lot of money that way? Or is it just that the wheel is going round so fast – technology catching up with volumes and driving expectations – that no-one can stop it now?

And is it presumptuous of us from the UK to accept praise for our rules and for the proportionate spirit behind our rules, when so few UK judges take e-disclosure seriously, when parties in big UK cases can still assert that the disclosure of electronic documents is ipso facto disproportionate, and when we have just had to fight a long hard battle to persuade our Civil Procedure Rule Committee even to accept that the subject is worth raising?

Whilst the English say “electronic discovery is something Americans do, and look what a mess they make of it”, Americans say “England is two years behind the US”. Well, I for one will not disparage the US approach any more severely than they do for themselves, and if a two-year lag saves us from the worst excesses of US discovery, then can we have longer please? The reality is that we can both learn from each other.  The dream combination, perhaps, would be the rules of England & Wales managed by the array of US judges who were present at Georgetown. My view is obviously a partial one.

I will try and pick out the subjects which have most relevance across the jurisdictions, either because there are parallels, or because their absence is itself a matter of note.

Consultation paper on Discovery in Australian Federal Courts

If Lord Justice Jackson’s review of Civil Litigation Costs included the most important summary of disclosure and e-disclosure of 2010, the Australian Law Reform Commission’s Discovery Review will be the key analysis of 2011. The Attorney General’s terms of reference attracted my attention because of the reiterated phrase “as early as possible”, which seems the right priority for all jurisdictions which require discovery of documents.

The ALRC has now published a Consultation Paper. The closing date for submissions is Wednesday 19 January 2011. So far, I have skimmed it rather than read it in my short gap this week between conferences in London and in Washington. My quick skim was sufficient to see that there is much useful thinking in it and I look forward to reading it properly on the plane.

I did, however, pick up two references in it to things which I have written. One of them, read out of its context, has the potential to misrepresent my views in much the same way as a few carefully chosen words from a play review on a theatre billboard can subvert the original sense. I stand by the quotation, but its words were something I had set up in order to knock them down, not my own opinion.

Two podcasts and a video on electronic disclosure

I have done two podcasts and a video recently which you may find a painless way of absorbing information about electronic disclosure.

I was interviewed last week by Karl Schieneman of ESIBytes earlier this week, on an introduction from Mike Taylor of I-Lit. The interview was given the title E-Discovery Versus E-Disclosure – How The English Handle E-Discovery.

We covered, amongst other things:

• my emphasis on technology as an adjunct to the brain, rather than vice versa
• the new UK Practice Direction and Electronic Documents Questionnaire
• the difference between an approach which collects everything and then seeks the things which matter versus the approach in Goodale v Ministry of Justice which focuses from the outset on the things which matter and work outwards from there if necessary
• the pressure which US-style spoliation threats gives to maximise discovery
• the value of predictive coding and other technical aids and the impetus which Goodale (again) gives to adopt this approach
• the alleged “gold standard” of manual review (and its advantages in terms of billable hours, if not of proportionality)
• the importance of cooperation
• the need for education of both lawyers and judges.

Inevitably (this being a US interview), we turned to the conflict between the US demands for documents and EU privacy and data protection laws. In this area, as in others, the more focused the original scope of disclosure / discovery, the less work than there is to do in identifying and, if necessary, redacting, private (or privileged) information.