FTI webinar: financial, transactional and operational databases in e-disclosure

FTI Consulting are presenting a webinar on structured data on Thursday 19 November at 1300 GMT. The subject is perceived by some as too difficult to talk about, but it cannot be ignored.

Elephants have provided a recurring theme throughout this blog. They are large, hard to get your arms around and difficult to describe to someone who is not familiar with them – which makes them the perfect model for the structured databases in which a very high proportion of company information resides.

E-mail, and user files like Word documents and Excel spreadsheets spring readily to the mind of a lawyer required to disclose “documents”. Sources such as HR and financial databases tend to be overlooked, largely because they usually bear little relationship to the conventional idea of a “document”.

Earles v Barclays Bank reported in the Times

Earles v Barclays Bank was reported in The Times today with the heading Disclosing electronic data.

I have already written about this (see Costs penalty for non-compliance with e-disclosure obligations). It is significant at several levels: unlike Digicel it is a fairly ordinary case; it is firmly grounded in authorities about evidence and not merely about disclosure or electronic disclosure; it covers the use of disproportionately expensive lawyers as well as procedural defects; perhaps most importantly, it is a case where documentary evidence would have proved immediately what it took much oral evidence to show, possibly allowing the case to be dealt with on a summary basis. The disclosure defects did actually cost time,  money and court time.

Spitting on the deck of the CPR

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

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

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

Costs penalty for non-compliance with e-disclosure obligations

A judgment given yesterday by His Honour Judge Simon Brown QC sitting as an Additional High Court Judge in the Birmingham Mercantile Court, will focus minds on the need to comply with the requirements of Part 31 CPR and the Practice Direction to Part 31 CPR when giving disclosure.

The case is Earles v Barclays Bank Plc in which the successful Defendant was penalised in its costs recovery after failing to observe the requirements of the disclosure rules. The judge was at pains to stress that there was no intent to conceal documents and that the omissions were the result of incorrect decisions as to the proportionality of the scope of search. The focus is not on the rules for their own sake but on the fact that if the Defendant’s disclosure had been conducted properly, then not only would much time have been saved at trial but a summary judgment application might have been successful.

Reaching informed agreement that e-disclosure is not needed

Having just published an article about whether electronic disclosure is needed in all cases, I turned to Ralph Losey’s blog to discover that he had just published an article about whether electronic discovery is needed in all cases. We do have fun on our Sundays, don’t we?

My article is called How would Bray & Gillespie play in the UK?. The references in it to the propriety of making informed decisions against e-disclosure are a mantra which I often include to make it clear that electronic discovery / disclosure is not the inevitable outcome; the target is the right decision and the proportionate decision, and such a decision cannot be made without weighing and costing all the options. Ralph Losey’s article is called Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules which explores, amongst other things, the extent to which the obligation to discuss e-discovery at a Rule 26(f) conference can properly be discharged by a cursory agreement to opt for paper; the alternative, plastic, is seen as being:

where you waste a ton of money paying vendors to chase down unimportant ESI and pay young lawyers to read emails about what people had for lunch, which are then produced to each other on plastic CDs.

Ralph asks “Is there a conspiracy among attorneys, officers of the court, to disobey the very rules that they have sworn to uphold?” and concludes that he is not willing to go quite that far – yet. There are others in the US who would say that, and I used almost exactly the same words, mutatis mutandis, on my first outing before British judges two years ago, with the tactful rider that judges often made themselves silent co-conspirators by not making sure that the right questions had been asked. Ralph puts the same point this way:

[Judges] approve by their silent acquiescence. Not all do, of course, a few e-discovery oriented judges speak out, and speak loudly, but they are a small minority. Most judges just look the other way.

How would Bray & Gillespie play in the UK?

Bray & Gillespie is a US eDiscovery case which has attracted attention partly because its outcome was so predictable and partly for the strong views expressed by the judge as to the conduct of those involved. What would have been the outcome if the same facts came up in a UK court?

The US courts are seeing an increasing number of cases in which the basic competence of the lawyers is called into question and, if found wanting, is punished by sanctions. These rarely involve a bare failure to understand the technology even where it is the technology which is at the heart of the case. The defect is not that the lawyers did not understand computers but that they had not read the rules and the opinions which make it clear that the electronic documents must be handled properly. This compartmentalising of the technology itself (on the one hand) and the rules relating to its use (on the other) may seem to be a distinction without a difference but it matters very much; the lawyers are hired for their legal knowledge and skills and cannot excuse themselves for failing to know the law.

If you were to say to a lawyer “Do you know how an MS SQL database works?” he might reasonably say that he does not. If, instead, your question is “Do you understand the extent of your obligations to disclose documents?”, he cannot answer “no” without admitting to professional incompetence. One of the problems in this area is that lawyers conflate the two questions and believe themselves exempt from understanding anything at all about the subject.

Fifth Annual eDisclosure Forum in London for only £99

London’s Fifth Annual eDisclosure Forum takes place on 13 November. Run by Thomson Reuters with Sweet & Maxwell, it is generally agreed to be one of the best in the London calendar. The delegate fee is only £99 + VAT, and any firm or company which anticipates litigation involving electronic documents (and who will not?) in the coming year should be there.

It is not just the very low delegate fee which makes this conference attractive. It is the only one whose program is designed from the beginning by its co-chairs rather than by the conference organiser. I know that, because I am again one of them. An e-disclosure conference must be simultaneously sensitive to local needs and reflective of international developments and there is a relatively small pool of people able to speak with authority at both levels.

I disclose the discovery that Britain is on its own

The UK cast itself off from the US and the rest of the common law world when we renamed “discovery” to “disclosure”. Now the whole Special Relationship has apparently died. US-UK cooperation on discovery/disclosure will survive that.

Inevitably, this column attracts comments from time to time, varying from the sophisticated to the obscene (Tom Lehrer once suggested that these two terms were interchangeable to a New York audience). One of the more thoughtful ones recently read simply as follows:

It’s bl00dy “disclosure” you dinosaur

My correspondent is, of course, correct in his succinct observation. Since 1999, Part 31 of the Civil Procedure Rules for England and Wales has referred to the identification and exchange of documents as “disclosure” where every other common law jurisdiction refers to “discovery” and, by extension, to electronic discovery or e-discovery or ediscovery (I draw attention to the difference between the presence or absence of that hyphen because, although Google treats the two terms as more or less the same, Twitter, annoyingly, sees them as different).

Judicial College gives hope of e-disclosure training

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

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

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

Judge Facciola on US and UK judicial discovery education

US Magistrate Judge John Facciola has recorded a podcast interview with Sarah Haynes of IQPC. This follows a very successful judicial panel which Guidance Software organised at IQPC’s e-disclosure conference in London in May (see The discovery of disclosure commonality with a trans-Atlantic judicial panel)

The interview can be found here. You have to register to access it, but it repays that small effort.

Judge Facciola said that US judges now manage cases from their inception, including participation in the discovery process. Magistrate Judges, whose role includes trying to settle cases, are applying the same approach to the discovery disputes – trying to settle them. You cannot, he said, just sit there and wait for something to happen, but must be very proactive in dealing with matters in an anticipatory way. Judges cannot exempt themselves from the duty of competence which they expect from the lawyers, and the Federal Judicial Centre is holding two day conferences with a particular focus on discovery.

Jackson Litigation Costs Review consultation ends

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

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

Well-justified anonymity of Jackson commentator

I am not sure what to make of an article which I have found on a blog criticising aspects of Lord Justice Jackson’s Preliminary Report on litigation costs. I have a general rule that if I do not have something pleasant to say in print, I keep my mouth shut. There are exceptions, of course, whom space does not permit me to list here but, on the whole, I reckon it is possible to comment thoughtfully and helpfully on the litigation support industry without attacking anybody, even if I have, occasionally, to grit my teeth.

I have stumbled upon this blog before, tipped off by one of my Google alerts. It seems competent, workmanlike stuff written by someone who (how shall I put this?) understands more about the technology than he does about the civil litigation context in which it is used. I have no problem with that – he knows much more than I do about file systems and data recovery – but I am put off, just a little, by the fact that the site is anonymous, with no clue as to who the author is or with what authority he writes. He calls himself 585. Do this number hold any clues as to his identity? 585 is (as I’m sure you know) the GeneID of Bardet-Biedl syndrome 4, whose symptoms I will spare you. I very much hope that this is not why he chose 585 as his alias. Perhaps it is his telephone extension.

Woolf v Genn: the decline of civil justice

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

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

Getting away from it all

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

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

Cooperative hands across the sea

My post about the increasing exchange of ideas between the US and UK on matters of electronic discovery (Preserving the old ways, protecting the new ways) followed a spate of references in US e-discovery commentaries to what is happening in the UK. I observed that “The UK’s apparently quaint approach to disclosure conceals some workmanlike rules which deserve better use and serious consideration by others as well as ourselves”. An English audience may be interested to see some of what is said about us in the US.

The sources referred to below are amongst those to which I pay regular visits anyway, but their common element last week was that they all linked to articles of mine (and therefore turned up on my visitor statistics list). The point of the observation is not so much pride in the quality of my audience as evidence that what happens in the UK is now of interest in the US, which you would not have found a year or so ago.

Preserving the old ways, protecting the new ways

This column, as you may have noticed, is deeply attached to the old principles of discovery of documents as a means of bringing evidence before the court. It is also a determined advocate of new ways of managing it. The US has tended to look on our rules and practice as rather quaint. As the gloss comes off the American way, however, there is a new appreciation of the British approach.

My title comes from a 1968 song by the Kinks. The Village Green Preservation Society included the lines

Preserving the old ways from being abused
Protecting the new ways for me and for you
What more can we do?

The Kinks were past their prime by 1968, with Waterloo Sunset and Sunny Afternoon behind them. It was the year in which Led Zeppelin and Deep Purple were new, and the nostalgia and sentiment of The Village Green Preservation Society were deliberately out of the mainstream, championing old virtues in a style redolent of an older (and perhaps non-existent) past. The previous year’s Summer of Love and flowers in your hair may in truth have been pretty unsophisticated concepts, but they seemed very modern compared with Ray Davies’s plea for “little shops, china cups and virginity”.

Australia at the centre of the discovery world

The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s);  possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large.

Ark Group e-Disclosure Conference 2009

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

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

Jackson conference challenge to litigation support providers

Lord Justice Jackson laid down a challenge to litigation support providers at the Ark Group e-Disclosure 2009 conference in London last week. They must, he said, find a way to bring down the cost of e-disclosure; if they cannot, then the basis of disclosure will have to be changed. Other jurisdictions provide a disputes forum which does not require the parties to undertake the vast exercises which are needed for compliance with the existing disclosure regime. The implication was that the old and treasured principle that all the evidence must be rigorously examined is threatened by the brute fact that the cost of conducting that examination is too high.

There is much more to say about this than can be fitted into an account of a two day conference, so I will settle for a bullet point summary of the other elements which contribute more to the costs than most suppliers do:

Judge Grimm webinar on the Maryland Protocol

When US Chief Magistrate Judge Paul W Grimm was in London for the IQPC Information Retention and e-Disclosure Management Conference recently, he mentioned the Maryland Protocol which he and others have devised for the better handling of electronically stored information in court.

Clive Freedman of 3 Verulam Buildings, the barrister who has been responsible for the actual drafting of the proposed new e-Disclosure Practice Direction as part of Senior Master Whitaker’s drafting group, made use of part of the Maryland Protocol for part of the final version of our Practice Direction, which is to be submitted this week.

There is an opportunity to hear Judge Grimm talk about the Maryland Protocol on Tuesday 9 June at 12:00 EST, when Wave University hosts a webinar at which it will be discussed.

Registration can be made from the Wave University Webinar Schedule.

I will miss it – I am chairing the second day of the Ark Group e-Disclosure Conference that afternoon. On the strength of other webinars in which Judge Grimm has spoken, I know it will be worth listening to.

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Birmingham Post reports on costs management trial

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

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

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

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

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

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

Parallel and cross-border developments in eDiscovery

I have just had to turn down the opportunity to speak at a conference organised by LexisNexis in Hong Kong on 20 and 21 July. The invitation was to deliver the keynote speech at the start of the first day with the heading  Globalisation and Digitisation: the Rising Need for Digital Forensics and E-Discovery in Today’s World, which I would have been extremely happy to do.

My Mother’s 80th birthday party is on the previous day and my eldest son’s graduation ceremony is in Leeds on the day following. I could, with a fair wind, have made it to Leeds with two hours to spare by racing at dawn from Heathrow to Gatwick. I have done worse things – my breakfast-in-Sydney-dinner-in-Washington trip last October didn’t allow even time for an espresso between terminals at LA and, as I recounted last week, I made it from Orlando to IQPC in London just as the conference opened. I am game for that sort of thing, but not for missing my Mother’s birthday.

Jackson launches costs management trial in Birmingham

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

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

Hard to keep up with Lord Justice Jackson

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

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

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

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

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Mock e-Disclosure hearing photographs

For those who have already seen the post about our mock e-disclosure hearing at IQPC last week, I have now added some photographs to it.

They and others can also be found here. They were all taken by Sonia Perez of Guidance Software.

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Making a play to sugar the e-disclosure pill

In a previous post (The discovery of disclosure commonality with a trans-Atlantic judicial panel)  I told how IQPC had, at my suggestion,  invited US Magistrate Judge John Facciola and Chief US Magistrate Judge Paul Grimm to come to their Information Retention and E-Discovery Management Conference last week and then asked me how I would like to make use of their talents.

One answer was the trans-Atlantic judicial panel which I described in that post, with Senior Master Whitaker, HHJ Simon Brown QC, Judge Grimm, Judge Facciola and me, moderated by Patrick Burke of Guidance Software. I have long wanted to do a mock e-disclosure hearing and this seemed a perfect opportunity. I saw one a couple of years ago in London in which Judge Facciola played – naturally – a judge. That had aimed at both US and UK procedures simultaneously and had, I thought, fallen between two stools in doing so. I wanted to do one under the English rules. We have had three cases recently – Digicel v Cable & Wireless, Abela v Hammond Suddards and Hedrich v Standard Bank London which had shown the downsides of not following the co-operation obligations under the Practice Direction to Part 31 CPR. Judge Grimm and Judge Facciola have been eloquent in their criticism of those who do not co-operate to reduce costs and who do not display the level of competence required of those who practice litigation. Why not cast them as the judge hearing an application by advocates who fell short of those standards, using facts similar to those of the English cases?

The discovery of disclosure commonality with a trans-Atlantic judicial panel

If I were to define a perfect working day it would go something like this: wake up in a comfortable hotel and take a five minute stroll to Piccadilly; sit on a platform with the two leading US and the two leading UK e-discovery judges and discuss developments in the two jurisdictions; go and see Lord Justice Jackson to discuss the e-disclosure parts of his report; take part in the premiere of your first play, a courtroom drama in which the judges are played by judges and the advocates by people whose life has been spent at the bar; then dine at Rules before going home with the sense, which others seem to share, that the disclosure world has moved on a bit that day.

It sounds all right as a way of passing the time, does it not? So that is what I did on Thursday, on Day 2 of IQPC’s Information Retention and E-Discovery Management Conference. I am but the Boswell to the distinguished set of Dr Johnsons who took part in all this and my main contribution was made months ago. I am on the Advisory Board for the conference, and Sarah Haynes of IQPC rang me up and asked which US judge should be asked to take part in the judicial panel which Guidance Software were intending to run. “Ask Grimm or Facciola” I said, much as one might say “Get Kidman or Jolie” for a film, or “Ask Rooney or Ferdinand” round to play football. Sarah rang back a few days later and said “They are coming – what would you like them to do?”

Compliance with the demands of an e-disclosure diary

I don’t think I envisaged a peaceful life when I decided to commit all my time to promoting electronic disclosure, but I am not sure either that I foresaw this much activity compressed into a short space. It is just as well that I enjoy it. My original policy never to say no to anything which will get an audience for the subject has had to be modified a bit – double-bookings are difficult, for one thing. Every event involves preparing slides and notes, not just turning up on the day, and the everyday stuff – researching and writing – goes by the board when there is always something happening or about to happen. I would not want it any other way but it would be good to have it better spaced. A summary will have to suffice for now, and the summer promises time to catch up.

Clyde & Co selects Epiq Systems and Trilantic as preferred e-disclosure providers

Although the business of the e-Disclosure Information Project involves telling law firms and corporations about electronic disclosure technology suppliers, I avoid discussions about pending competitive tenders in the e-disclosure market. Given the range of people with whom I am in contact, the chances of hearing twice about the same contract from rival bidders are too high and, metaphorically at least, I put my fingers in my ears if I fear I might learn more than I want to know.

No-one, however, could avoid knowing that Clyde & Co has been working to identify preferred suppliers of electronic disclosure services. It seems ages ago that I first heard about it, in a remote country pub (life is not all glossy conferences and airports, you know) and it became clear that Kevin Butterill, Clyde’s litigation support manager, was extremely keen to get it right. The tender became the Moby Dick of the e-disclosure seas, each provider his own Captain Ahab on a mission to hunt it down.

Something for everyone in the Jackson litigation costs report

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

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

E-Disclosure in the £50,000 case

The article to which I am about to refer you is in fact called E-Discovery in the $50,000 Case by Conrad Jacoby and not as my heading shows it. We in the UK renamed the ancient process known as discovery of documents ten years ago and called it disclosure, as part of the frankly stupid idea that if you give something a trendy new name you somehow make it better. Sterling is now so debased as against the Dollar that the difference between 50,000 of the one and 50,000 of the other does not matter much in the context of which Jacoby writes.

How can you handle electronic documents cost-effectively in cases whose value is disproportionate to the work involved in strict compliance with the rules of discovery / disclosure? Many in the UK blame the advocates of litigation support technology, as if we are somehow responsible for creating all this stuff. It exists. It has to be dealt with if you are to comply with the rules. Pretending that your clients and their opponents do not have electronic documents has two outcomes – breach of professional duty, and unexpected costs down the line. Better, surely, to square up to the facts and develop a strategy to handle the documents efficiently.

LexisNexis debate marks ten years of the CPR

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

The panel members were:

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

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

Informed comment in the Times adds to the Woolf rules debate

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

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

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

Not going to Canada for the second time this month

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

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

Have the Woolf reforms worked?

An article in the Times of 9 April had the title Have the Woolf reforms worked? Written by Lawrence West QC, it makes an uncompromising start with the assertion in the first paragraph that “the reforms — known as the Civil Procedure Rules (CPR) — have been a disaster for the civil justice system”. The right to access to justice is “illusory” and, judged by this standard, “the CPR have been an abject failure”.

West quotes some figures in support of his view that the number of civil actions in the year after 1999 “plummeted as if pushed off a cliff”. The statistical evidence is supported by this more anecdotal statement:

“Before the CPR, the corridor outside Court 12 in the Royal Courts of Justice, the Bear Garden and the Master’s Corridor heaved with lawyers and their clients waiting hearings. Those places have been wastelands ever since.”

You can guess at my support for this viewpoint from the fact that I long ago chose to give the title “The Empty Bear Garden” to my keynote speech for the 8 June Ark Group e-disclosure conference Practical Guidelines to e-Disclosure Management. The Bear Garden is a space in the RCJ at which several corridors, staircases and doors intersect. It has become a gauge of court activity, like a cardiac monitor in a hospital drama. A cardiac monitor makes a noise, however, when it is flat-lining.

KordaMentha picks EnCase from Guidance Software for Australian eDiscovery

Like sport and so much else, the idea of proving a legal case by discovery of documents is an old English concept which was adopted wherever the English had a hand in establishing a system of law. America kept it when it dumped our tea, our taxes and our King. Australia adopted it with the same enthusiasm as it adopted cricket. A couple of weeks ago, Hong Kong was host to both the Rugby Sevens and our Senior Master Whitaker talking about UK disclosure developments. Discovery is central to Canadian litigation, and Master Whitaker is due to speak about it in Singapore later in the year.

Three things unite all these countries apart from their common law heritage. The problems raised by electronic disclosure are the same everywhere; those of us involved in developing rules and best practices around the world all speak to each other; and there is a handful of suppliers whose applications are used wherever electronic data must be collected and handled for litigation or for regulatory investigation. The resulting cross-fertilisation has obvious benefits – what works in one place will probably work in another, and if an approach tried in one country is seen to have failed, then it is as well to know about it before another jurisdiction goes down the same track. The things I talk about in Birmingham or Bristol are informed by what I Iearn in Sydney or New York, and it would perhaps surprise UK judges and lawyers to know how much interest there is in those places in what happens in the UK.

Catching up with KPMG

Part of the function of the e-Disclosure Information Project is to keep up with what the providers of software and services are doing. Given my emphasis on the human aspects of this business (which recurs in this blog and elsewhere in the form of questions like “Would you trust them with your client’s data? Do you like them?”) it is important to keep in touch by going in to see providers or welcoming them out here in Oxford. Since I neither buy nor directly recommend anything, these sessions are free of sales pitches, save in the subliminal and low-key sense that there is a mutual interest in sharing information.

I always seem to have a backlog, both of outstanding invitations and of writing about them. That reflects the balance between things I do directly for the Project’s sponsors, the wider objective informational aspects, the range of material which has to be read from the various jurisdictions in which discovery takes place, and the fact that there is always a conference organiser bullying for a set of slides.

KPMG comes to mind every day for the wholly obscure reason that my coffee cup sits on a tile which was the 1993 Christmas present from KPMG Forensic Accounting. It is functional as a mat, albeit that it shows a 1994 calendar. Like KPMG itself, it can claim longevity in a market which is full of new companies, staffed by people who were still at school in 1994, and in which corporate freebies have a marketing life of about ten minutes. I must have been on their mailing list on the strength of accounting negligence claims which I had run as a litigation partner (including JEB Fasteners v Marks Bloom in 1984 and Al Saudi Banque v Clarke Pixley in 1990, both still cited).

Explaining the Procrustean Bed

My post Zander sees his Woolf CPR predictions fulfilled refers you to an article by Michael Zander QC.

As an aside, a generation deprived of a classical education may be puzzled by Zander’s reference to a “Procrustean bed”, as I admit I was when I first saw it in a footnote to the old Rules of the Supreme Court. Lord Donaldson had used the expression in relation to the size of appeal bundles. I have to say I assumed in my ignorance that this was a geological metaphor. What he meant was that it was not necessary to pad out the bundles to the recommended size, nor omit necessary pages to meet the suggested size. The reference was to the apparently genial host Procrustes, who would invite passers-by to lie on his bed. He would then stretch them or amputate their limbs as required to fulfill his boast that his bed was just the right size for everyone.

One commentator refers to Procrustes drily as “the ancient champion of enforced conformity”. We do not, of course, want such precise conformity from our judges, ancient or not, but some degree of consistency would be nice, at least in respect of disclosure orders. We do not need the same answer every time, but the right answer, a proportionate answer, based on information provided by the parties “at the earliest practical date, if possible at the first Case Management Conference”.

The quotation comes from Paragraph 2A.2 of the Practice Direction to Part 31 CPR. That involves the exercise of informed discretion. Reading the damn thing and applying its provisions is not, however, discretionary.

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Zander sees his Woolf CPR predictions justified

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

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

Free e-disclosure podcast from CPDCast

I recorded a podcast last week with James Sheedy of CPDCast. You can listen to it for free and solicitors, barristers and ILEX member can get CPD points for doing so. There is a note at the bottom of this post explaining how to access the podcast.

I have to say that I prefer an audience I can see to a microphone in a padded cell. From the audience perspective, however, there is obvious benefit in having talks like this delivered to their desks and downloadable to an MP3 player, although they don’t then see the slides with which I usually illustrate the subject. I have been asked to do more of these, including a longer series covering the full range of topics – more on this when we have advanced our plans.

What was interesting for me was that James Sheedy composed the questions after some (impressively fast and thorough) research of the subject from scratch. Although much of the ground covered was inevitably the same as that which I devise for myself, the outsider’s perspective helps to bring out aspects which I do not necessarily think of. One of his questions, for example, was predicated on the assumption that the lawyer starts with a room full of paper. The challenge is to persuade people to investigate a purely electronic solution BEFORE existing electronic sources are turned into paper at vast expense in printing and copying.

The growing importance of metadata preservation in eDiscovery

If UK lawyers do not share the US enthusiasm about the preservation, collection and use of metadata, that is in part because they are not clear what it is and how it might be used. A forthcoming webinar will be a painless way to find out.

Guidance Software is hosting a webinar on Tuesday 24 March called The growing importance of metadata preservation in eDiscovery. As the developers of EnCase eDiscovery, whose function is the collection across corporate networks of discoverable documents and data, Guidance has an obvious interest in the metadata – data about data – which lies in and around the documents which may become evidence.

Ark Group Conference 8-9 June 2009

The brochure came out today for Ark Group’s e-Disclosure conference taking place in the Ibis Hotel, Earls Court, London on 8-9 June.

The main attraction is Lord Justice Jackson who will be presenting a review of the litigation costs working paper which he is spending 2009 working on. He will be talking about his investigation into cases of all sizes, looking at the costs in all the Specialist Courts (that is, the Commercial Court, Technology & Construction Court, the Mercantile Courts etc) and discussing the limitations in the present system which have been raised by others in the course of his review.

Law Society Seminar – Disclosure – the risks after Hedrich

I spoke yesterday at a seminar organised by the Law Society and sponsored by Legal Inc and Millnet. The theme was as foreshadowed in my article Law Society Disclosure Seminar in London and was implicit in the name I gave it: Disclosure – the risks after Hedrich.

The title referred to Disclosure rather than e-Disclosure because the electronic side to this subject is servant to the primary obligation to give disclosure of documents under Part 31 CPR. It referred to Hedrich because although the solicitors in Hedrich v Standard Bank London were found not to have been negligent, and beat off the wasted costs application brought against them, I am not sure I would count it much of a victory to have had to come off the record in mid-trial and then go all the way to the Court of Appeal to fight off the claim that my failure to spot my clients’ disclosure failings had caused loss (and how) to the other party.

Legal Inc panel at LegalTech lives up to its billing

Litigation support providers from the relatively small UK market  made a good showing at LegalTech in New York this year. Amongst them was Legal Inc who hosted a panel of luminaries moderated by Charles Christian of Legal Technology Insider. LTi now has an American Edition, compounding the sense that the UK has something to contribute to the US legal technology scene.

The Legal Inc panel consisted of Sanjay Bhandari of Ernst & Young, Matthew Davis of Lovells and Andrew Haslam of Legal Inc, with the US represented by Peter Cladouhos of Paul, Hastings, Janofsky & Walker LLP.

The advertised purpose of the panel was to draw attention to some of the pitfalls and dangers inherent within electronic disclosure that can ensnare the un-prepared, and to explain how preparing for, and meeting the demands of, electronic disclosure can be scaled for large, mid-sized and even small organisations. The UK has some relevant case law at last and that, coupled with a planned EDD questionnaire  and increased judicial interest in the time- and costs-savings, suggests that the ability to handle documents and data electronically is permeating down to smaller organisations and more everyday cases.

Lisa Burton of Legal Inc introduces the Panel

Peter Cladouhos, Sanjay Bhandari, Matt Davis, Andrew Haslam, Charles Christian

Mediation – not about just settlement but just about settlement

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

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

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

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

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

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

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

Kazeon to host judicial e-discovery webinar

I have yet to write up the tremendous speech made by US Magistrate Judge John Facciola at LegalTech in New York last week. My excuse, if such be needed, is that it contained so much of importance to anyone practising in any common law civil jurisdiction that it will take some time to capture what he said. For some unaccountable reason, the organisers failed to record it, making it the more important to write it up.

The influence of a judicial perspective on any aspect of case management is not to be under-rated, and this applies more to electronic discovery than to anything else. One of the issues we have in the UK, for example, is one of consistency of outcome – parties do not know what to expect from the judge and so cannot negotiate about the scope of disclosure within a known framework.

US judges are more willing to discuss publicly what they expect from parties, probabaly because they are taught about it and have more exposure to it than UK judges. Kazeon, who provide software and services for corporations, legal services providers and law firms to search for, retrieve and analyse data, has a webinar coming up at which the speakers include two judges.

LegalTech lessons for lawyers from extinct species

Only one practising UK commercial lawyer came to LegalTech in New York. Recession hit the litigation support industry before our eyes. One of the recurring themes there was that the clients are taking discovery in house.  Down the road we saw some other extinct species

As if LegalTech itself were not enough, Sunday, my first full day back from New York, lasted for 24 hours, thanks to disrupted sleep patterns, a full InBox and a five hour meeting discussing potential discovery developments in Australia and AsiaPac.

You know better by now, I think, than to expect a dutiful account of LegalTech. You get from me little in the way of faithful reports of worthy sessions, no deep market analysis, no breathless interviews with industry leaders. Others, I know, sit on the special pews reserved for bloggers and have their reports filed before the speaker has made it to the bar. I got to few sessions, although I did turn up, I think, to all those I was booked to speak at. There is no shortage of industry leaders to talk to – you bump into CEOs in corridors or go up to their eyries above cloud level at the Warwick Hotel – but journalistic scoops are not really my style and I am content to wait for the press releases. I am into broader sweeps than the last big sale or the next major release.

Discovery Practice Note issued in Australia

The Chief Justice of the Federal Court of Australia yesterday gave effect to the long-awaited Practice Note No 17 – The use of technology in the management of discovery and the conduct of litigation.

Those of us involved in drafting the proposed new Technology Questionnaire and draft Practice Direction in the UK have been keen to keep up with parallel initiatives in the Common Law jurisdictions. and particularly Australia and Canada.

The timing of its final release is good and bad from my point of view – good in that I am due to speak on a panel at LegalTech in New York next week about international initiatives in electronic discovery, and bad in that I have enough to do to be ready for tomorrow’s flight without exciting new developments to read up.

Fortunately, one of my co-speakers on that panel is Jo Sherman who was heavily involved in the drafting of the Practice Note, so I can leave it to her to cover it. I will read it on the plane and cover it in more detail shortly.

My thanks to Geoffrey Lambert of KordaMentha in Melbourne and to Seamus Byrne who each sent me a link to the Practice Note within hours of its promulgation.

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Jackson sets out some litigation costs issues

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

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

Plenty to write about but no time to write

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

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

Fannie Mae – be careful what you agree to with e-discovery orders

The American Fannie Mae case shows what can happen if a lawyer unskilled in electronic disclosure agrees to something which is beyond his skills and knowledge. UK judges may baulk at questioning an advocate’s expertise, but they have an absolute right to ensure that all the facts are in front of them before endorsing agreements which may affect the case as a whole

American cases involving large sums of money tend to be ignored in the UK on both those grounds – being American and seeming always to involve millions. We can hope that the outcome of the recent decision of the US Court of Appeals for the District for Columbia in In re Fannie Mae Securities Litigation will never be paralleled here (indeed one hopes much the same for America), but it does nevertheless have warnings for lawyers engaged in discovery disputes in the UK.

SCL Summary of Digicel v Cable & Wireless

I have written much about the Digicel case Digicel (St. Lucia) Ltd v Cable & Wireless Plc [2008] EWHC 2522 (Ch) but delayed writing a summary of the actual judgment because I knew that barrister Clive Freedman was doing so. His article appears on the SCL web site with the title One Search or Two? and I commend it as a succinct report by a knowledgeable commentator.

Clive refers to a working party which is preparing a Technology Questionnaire but modestly omits to mention that he is a member of it, as I am. Our remit extends beyond the Questionnaire and on to a new Practice Direction which, when added to Digicel and the yet more recent Abela judgment, will ensure that judges and practitioners will no longer be able to ignore the disclosure rules as they relate to electronic documents.

Identify early and co-operate in 2009

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

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

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

Mancia: interest in US being interested in them

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

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

Audio recordings of SCL e-disclosure seminar

My article Electronic Disclosure: Meeting the Challenge was a report of a seminar presented by the Society for Computers & Law in October. Janet Lambert, Christine Gabitass and I were the speakers under the chairmanship of Clive Freedman.

The sessions were recorded and are available on the SCL web site. Listening to them entitles you to 2.30 CPD hours provided that you can answer some questions at the end.

Given that the Hedrich, Digicel and Abela cases have all been reported since then, some of you may find this a painless way of finding out what the courts expect from you.

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SCL Predictions 2009

Computers & Law, the web site and magazine of the Society for Computers & Law always collect predictions at this time of the year from some of those who work at the intersection of law and computing.

One of mine has come good already, and the old year has yet to expire. I said that Digicel v Cable & Wireless “will have an immediate effect on case management of disclosure”. I reported yesterday (see Getting expert search evidence in front of the court) that the judge in Abela v Hammonds made an order which, like Digicel, required parties to co-operate as to the scope of the electronic sources to be reviewed. Digicel was expressly referred to.

My other predictions related to the wider use of early case assessment applications, the growing understanding that solicitors need to get to know some providers of e-disclosure services, proper use of the Practice Direction to Part 31 CPR and the prospect of clients taking some of their e-disclosure work in house.

These appear on the third page of the 2009 Predictions. See also the first and second pages.

Mancia – US discovery lessons for UK lawyers

Many UK lawyers and judges affect disdain for the American way of litigating and, in particular, for the way US lawyers handle electronic documents. The UK lawyers’ perception that e-disclosure is all very expensive not only confuses cause and effect – it is the existence of the documents which is the primary problem – but blinds them to the constructive criticism which many US lawyers and judges make of their own practice. The problems and most of the (largely US) technical solutions are the same. A look at the similarities in current US thinking might inform our own approach.

The recurring theme in this area in the UK at the moment is the need for two things – getting more and better information about one’s own clients’ documents and a more co-operative approach to working out how to manage disclosure so that the pursuit of justice is not buried by the costs of trying to achieve it. The main stumbling block here is ignorance – there is plenty of expensive gamesmanship being played, but much of the money thrown away is wasted because practitioners know little about the rules and less about the technology.

A takeaway of Digicel tips

The old cliches are the best, and it is fair to say that English judgments about the case management of electronic disclosure are like London buses at the moment. After years with hardly any any reported cases, we have had Hedrich, Digicel and now Abela in quick succession. I am sure that decisions about the scope of electronic disclosure are being made every week, but it is the reporting which is new. The reports in turn give rise to commentary.

The Solicitors Journal carries an article about Digicel by Alex Dunstan-Lee of KPMG Forensic and Ed Sautter of Mayer Brown, both well-known on the subject of e-disclosure. The conclusions they draw from the judgment – (i) gather as much information as possible about the data in question; and (ii) enter into a detailed dialogue with the opposing party regarding that information – are as short an encapsulation as one needs from this case. Both are obligations set out in the rules and in the Practice Direction to Part 31 CPR. Both seem pretty obviously the right thing to do anyway.

Getting expert search evidence in front of the court

Yet another important new UK case on electronic disclosure, Abela v Hammonds, reaches me whilst I am listening to a US webinar about searching. The theme of both is knowledge, understanding and expertise – and co-operation to arrive at a proportionate solution

Men famously do not multitask well, but there is too much going on in e-disclosure at the moment to do things in neat sequential steps. I found myself this morning listening to a US webinar on the courts’ requirements for searches for electronic evidence whilst simultaneously reading a new 70 page English judgment on the same topic. This article is not a deeply considered report of either of them, but the coincidence and commonality is worth capturing.

Australian judgment served via Facebook

Lawyers in Australia have served a default judgment on borrowers by sending it via Facebook. The Supreme Court of Australian Capital Territory gave leave for service to be effected in this way because the borrowers had left their last-known address. There was enough information on the Facebook accounts to satisfy the court that the addressees were the right people.

Is Hedrich more important than Digicel for e-disclosure?

A cigarette packet carries the warning that smoking can kill you. Solicitors’ standard terms of business should carry a warning that litigation can cost you. For litigation is an inherently risky business: there are no certain winners; and very often even the fruits of success are never recovered. This is just such a case. The moral is caveat litigator.

This is the opening paragraph of Lord Justice Ward’s judgment in Hedrich v Standard Bank London Ltd [2008] EWCA Civ 905. It is not only the litigating parties who get a strong caveat from this case. Solicitors may conclude that the hairs-breadth which preserved the Claimant’s solicitors from a large wasted costs order in that case might justify a closer understanding of their obligations as to electronic disclosure.

I have not seen it, but the current edition of Civil Procedure News, which comes with the White Book Service, apparently has four headings on the front. One is “Standard disclosure of electronic documents”. The Hedrich and Digicel cases are reported in the “In brief” section, and Digicel is covered in the detail section. I wonder if we might come to see, over time, that Hedrich is the more significant of the two cases.

Webinar: Benchmarking E-Discovery Methods

The webinar anticipated in this post has now taken place. My report on it, and its fortuitous coincidence with a new UK case,  can be found in my post Getting expert evidence in front of the court which also includes a link to the recorded webinar.

H5, the San Francisco company specialising in information retrieval for litigation, investigations and related information management, are giving a webinar on Wednesday 10 December at 1-2 p.m Eastern / 10-11 a.m Pacific time. The full title is Finding a better way to search: Benchmarking E-Discovery Methods.

The premise for the webinar is that lawyers are looking for ways to meet their discovery obligations quickly, cost-effectively and with minimal risk, whilst judges are attaching increasing importance to the way in which searches are conducted – not just the technology but the related sciences of e.g. linguistics and statistics. The perceived importance of this lies in the often-quoted assertion by US Magistrate Judge John Facciola in US v O’Keefe that Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.

Reviewing the Commercial Court Recommendations

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

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

Ignorance of mainstream technology may cost you

Internet telephony, like litigation technology, is now accessible and affordable. Ignoring VOIP merely passes up the chance to cut your telephone bill. Ignoring litigation technology may cost you rather more. The problems, and the solutions, are the same everywhere

A male who bought his first PC shortly after they first came on the market and who has been a software developer might be regarded with some suspicion when he tries to induce others to use technology. You could look at it the other way, of course, and reckon that if someone imbued with office computer technology since its infancy still finds some of it near-magical in its power, then it might be worth a look.

This was brought to mind by two phone calls I received in close succession across midnight on Saturday. At that time of night it is the middle of the day in West Coast America and early morning in Victoria, Australia. My first call was from Browning Marean of DLA Piper US LLP in San Diego and the second was from Geoffrey Lambert of KordaMentha in Melbourne. Both were by VOIP (Voice Over Internet Protocol) and the total of two hours’ crystal-clear conversation with opposite corners of the world cost none of us anything.

The revolutionary consequences of Digicel

The importance of Digicel v Cable & Wireless lies not in any new law and still less in allocating blame for the outcome. We cannot predict its consequences but what matters is that everyone now knows about the Practice Direction to Part 31 CPR

Zhou Enlai, first Premier of the People’s Republic of China, when asked to assess the importance of the French Revolution, famously replied that it was “too early to say”. Similarly, I do not feel in any great rush to say what the long-term effect will be of Digicel (St Lucia) Ltd v Cable and Wireless plc [2008] EWHC 2522 (Ch), [2008] All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008 (thanks to ignorant politicians and the damage caused by trendy educationalists, it is probably necessary to explain for the benefit of anyone under 40 that the French Revolution began in 1789 and that Zhou Enlai died in 1976).

What exactly is it that you do?

A career devoted to court rules and electronic documents is not an instant turn-on for dinner party conversation. The subjects are, however, important ones for businesses beyond those which actually work in litigation, and the rate of change is increasing

What exactly is it that you do? Like all of us, I get asked this question from time to time by people who are outside the world of law and technology. It is much easier for those of you who read this. If, whatever your gender, you say you are a litigation solicitor, then doubtless people gaze on you with that same awestruck admiration which was formerly reserved for chaps on leave from the trenches. If you are a supplier and say that you work at the cutting edge of information technology then you are up there with rocket scientists – they do not understand, but they know it matters. Barristers are assumed to have mighty brains and Ciceronian eloquence. If you are a judge, then you are met with equal deference whether you are a part-time Deputy Recorder or sit in the Court of Appeal.

When they ask me, my answer usually elicits a perfectly understandable look of blank incomprehension. “I speak and write about the disclosure of electronic documents for litigation” I say. “Will you excuse me?” they reply. “I’ve got to go and see a man about a dog” or some such transparent excuse to get away.

Autonomy Early Case Assessment at the Ritz

Most of my speaking engagements are of the nuts-and-bolts, cradle-to-grave variety where I speak for a couple of hours about the issues raised by electronic documents and about how proper use of the Civil Procedure Rules, coupled with an understanding of the available technology solutions, should give parties and the courts the means to arrive at answers which are proportionate to the case.

People can read the rules for themselves once pointed in the right direction. The technology, and the problems which it addresses, need a more visual approach, and I am increasingly getting the opportunity to use snippets of visual displays from specific products to illustrate generic points. The aim is not to try and display the whole range of solutions from the left hand side of the EDRM diagram to the right, but to use a picture to say a thousand words about a sub-set of it, to shine a torch into a previously dark corner in the hope that it illuminates the wider picture.

As a change from these points of detail, I am sometimes asked to speak about the broader context, to give a kind of “state of the nation” talk which pulls together some of the threads. One such opportunity arose last week when Autonomy invited me to be the guest speaker at a lunch at the Ritz.

LexisNexis and LDM joint venture

LexisNexis and LDM Global were hosts at a party on 6 November at the Andaz Hotel at Liverpool Street. The occasion was a link-up between them which brings together LDM’s role as a provider of a wide range of legal technology services and LexisNexis’ Hosted FYI.

The Andaz Hotel proved to be the former Great Eastern Hotel, which I remembered as a place of decaying plasterwork and dark corridors, selling curled sandwiches from under plastic domes or board-like plaice and soggy chips. It is now a cool destination, with dark walls hung with eye-catching pictures, glass tables and some extremely decent food and drink. My recollection of it, I realised, dates back to 1962, so a few changes might have been expected.

There are no marks for originality when describing a supplier’s products, and unless their own descriptions are top-heavy with hyperbole (in which case I remove it) it is easiest simply to pass on what they say about themselves. LexisNexis’ own description of Hosted FYI is as straight up-and-down as you can want – it delivers comprehensive data management know-how, online review and disaster recovery for law firms, corporations and government agencies. Hosted FYI is a secure, centralised, multi-user web review solution for processing, storing, retrieving, analysing, reviewing, redacting and sharing disclosure documents and Concordance databases quickly and easily.

Electronic Disclosure: Meeting the Challenge

This was the title of a seminar presented by the Society of Computers & Law on 20 October when our hosts were Barlow Lyde & Gilbert. The Chairman was barrister Clive Freedman and the speakers were Janet Lambert, a partner in Barlows’ Reinsurance and International Risk Team, Christine Gabitass, Technology in Practice Analyst at Latham & Watkins, and me.

Birmingham Law Society e-disclosure seminar

A collections expert, a data archive specialist, a commercial barrister and a judge took a Birmingham audience – the second audience there in three weeks – through the stages of data handling, from organising it on the clients’ server, through its collection, and on to its use in court. I was the warm-up act

Freshly returned (well, reasonably fresh, anyway) from electronic discovery conferences in Australia and the US, I was back in Birmingham on 23 October for an e-disclosure seminar organised by Birmingham Law Society. One of the speakers in Sydney, Geoffrey Lambert of KordaMentha, had referred in his session to the “Birmingham initiative” which suggests that we are making some impression. This was the second well-attended seminar in the city in three weeks, following the one at St Philips Chambers at the beginning of October.

Terms of reference of litigation costs review

The Terms of Reference for Lord Justice Jackson’s review of costs have now been published. The stated objective – “To carry out an independent review of the rules and principles governing the costs of civil litigation and to make recommendations in order to promote access to justice at proportionate cost” is as wide as one could hope for.

See my article on the review Lord Justice Jackson to head litigation costs review.

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Judgment in Digicel (St Lucia) v Cable & Wireless

I wrote about this case on the basis of a short summary of the judgment – see Case law at last on scope of reasonable search. In summary, I described it as important not because it made any new law or clarified any rule, but because it showed judicial involvement in applying a perfectly clear set of rules to the practical problems of assessing proportionality.

The full judgment is now on BAILLII. I am grateful to Peg Duncan, a member of the Steering Committee and the Editorial Board of Sedona Conference Working Group 7 (Sedona Canada), for spotting it before I did and drawing it to my attention. We are, I think, seeing a new phase of international co-operation on this subject as we all face the same concerns about the costs of electronic discovery / disclosure. Canada has been one of the more forward sources of thinking on the subject.

The terms of reference of Lord Justice Jackson’s review of civil costs specifically include comparing the costs regime in England & Wales with those of other jurisdictions. Canada is likely to be one of them.

A glance at the Digicel judgment shows that it covers more aspects than the brief summary which I used for my first report. More will follow on this.

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Lord Justice Jackson to head litigation costs review

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

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

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

Speaking and listening in Australia

Sydney feels familiar from the moment you step off the plane. It is not just its culture, language and architecture which makes you feel at home – its law, its information management issues, the remedies available to judges and the suppliers are the same or similar

Several decades ago, I lived and taught in Kenya on what was then not called a “gap year”. The gap was not optional in those days for those intending to go to Oxford or Cambridge.  I had until September to occupy, and arranged to spend the interval at a remote up-country school near Nyeri.

There was a boy amongst us who could see English parallels everywhere – you would be standing on a mud road looking up a valley of tea plantations at the mist hanging over the snowy peak of Mount Kenya and he would say “Just like the Lake District”. I have half a recollection that he compared a part of Nairobi to his native Croydon. This obsession with the similarities became slightly annoying for one whose pleasure derived from the geographical and cultural differences. In fact, although Kenya had become independent only ten years previously, pretty well every outward trace of colonial rule had been extirpated. The first signs of the new colonialism of the multinational existed in the form of a new Hilton Hotel.

I thought of this as I came in to Sydney over Botany Bay, whose sewage farm, oil refinery and container terminal jarred somewhat against my mental picture of Captain Cook picking daffodils beside gleaming sands. The first sign you see, over the starboard wing before your wheels touch the ground, are the yellow arches of McDonalds. One’s expectations of finding anything very different from Oxford or Washington diminish accordingly.

Betting on certainties in the information war

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

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

Birmingham barristers see e-disclosure applications

A seminar in Birmingham allowed an audience of lawyers to see some of the applications used to handle electronic disclosure topped and tailed by some explanation of the litigation context. It was not just a trade show but a visual way to convey that the solutions are gaining on the problem

The e-Disclosure Information Project originated in Birmingham when Mark Surguy of Pinsent Masons introduced me last summer to HHJ Simon Brown QC, a designated Mercantile Judge at the Birmingham Civil Justice Centre. We brought it back there at the beginning of October when Edward Pepperall, a commercial barrister at St Philips Chambers, arranged for the Midland Chancery & Commercial Bar Association to invite us to give a reprise of a talk he had heard us give to solicitors a few months ago.

Ed Pepperall’s reasoning was that barristers are increasingly getting involved in the procedural aspects of Case Management Conferences. Birmingham may be ahead of other places because the judges there are known to practice the “active management” which the overriding objective requires and in which the parties are expected to take their part. The Commercial Court Guide, on which the Mercantile Court Guides are based, emphasises that the CMC is not just the old summons for directions. Judge Brown says of the CMC that is a “business meeting”.

If barristers are engaged at the CMC then they need to be aware – preferably well before they go in, and not just in the corridor outside – what the court will expect them to cover. Hands up all those who know about the obligation to discuss electronic sources of documents in Paragraph 2A.2 of the Practice Direction to Part 31 CPR. I thought not. What about Digicel (St Lucia) v Cable & Wireless? We did not mention that, because it had not been heard then. It has now, and we can expect many more orders requiring parties to discuss their sources and to take difficulties or disagreements to the judge.

Case law at last on scope of reasonable search

We at last have a reported case on the scope of a reasonable search for electronic documents and on the duty of parties to co-operate. You do not need case law to validate a clear rule, but Digicel (St Lucia) Ltd v Cable & Wireless has wider implications than its facts suggest, if only in terms of spreading awareness of the rules.

I was once discussing with the US General Counsel of a multinational company the points which distinguish the CPR requirements on disclosure from those of the US Federal Rules of Civil Procedure. The specific subject was the scope of the search which is required, and I was explaining that our obligations under Rule 31.7 CPR were defined by broad notions of proportionality for which the rules provided a set of factors, whose weight was ultimately a matter for the court’s discretion if the parties could not agree.

What will recession do for civil justice?

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

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

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

Going the extra mile to understand discovery

It takes roughly twice as long to travel from Sydney to London via Washington as it does to fly directly eastbound. I could have been home in Oxford in about half of the 30 or so hours of travelling time involved in the long hop across the International Date Line, the arrival in Los Angeles five hours before I left Sydney, the run between terminals at LAX, the airborne cattle truck which took me across the USA, the flog into Washington from Dulles Airport and, two days later, the red-eye back to London. It also cost me a fair amount of money.

The main draw was a keynote speech by US Magistrate Judge John Facciola at the Masters Conference in Washington. There was plenty else worth being at the Masters Conference for, but this was why I came. It was worth it.

Leadership in litigation

This is a report of a speech given by US Magistrate Judge John Facciola at the Masters Conference in Washington on 17 October 2008. Its theme was leadership. Whatever view UK lawyers and judges may take about US litigation discovery, this thoughtful survey has much of value for a UK audience

Judge Facciola began by holding up FDR (for you Brits, that is Franklin D Roosevelt, the architect of the New Deal in the Depression of the 1930s) as the model for leadership. He went on to give us one modern-day example of fine leadership, and several where leadership was seriously lacking.

Judging the importance of form over function

The parties are gathered for a Case Management Conference. It has been the diary for some time, and no-one is in any doubt as to the time, date, place or nature of the business to be discussed. The summons is passed across to the judge. There is a purely technical defect on its face. Go away, says the judge, and come back when you are properly ready to present the application to the court.

Did you hear my scream when I was told that story last night? Perhaps I managed to suppress it, biting my knuckles to prevent it echoing round Aldgate.

I will not tell you who it was or what level of judge he was since it is the attitude which I am attacking not the person. I have not looked up whether the point at issue is in fact a requirement nor what the penalty is – let us assume that it is required and that a spell in the Tower is the usual punishment, so that the parties were lucky to be sent away with nothing but a wasted morning, a few thousand pounds in lost costs and a delay in getting the case moving. What does this do for the overriding objective?

Take the best and discard the worst from US litigation

The Vikings brought with them some habits which were deplored by their hosts, but they also brought technology which we turned to our advantage. We do not much like some of the practices in US civil courts, but we can certainly use the technology which has been honed in them

On 8 June 793, the first Viking long-ships appeared off the coast of Britain – “ravages of heathen men” said the Anglo Saxon Chronicle, which had recently predicted some such cataclysm. The Vikings did a bit of raping and pillaging and pushed off home. The next year they were back, but were beaten off, retiring hurt with their leader dead, many drowned in a storm and others killed on landing.

Their technology, particularly in ship-building, was way ahead of its time, and improved rapidly to reflect the experience of the sailors and as an aid to the rough and tumble of their work. Not only were the ships able to face the roughest storms, but they had shallow draughts and were light enough to carry, both useful developments which were enhanced to cope with their raids. Nor were their victims an uncivilised and impoverished race – the visitors would hardly have bothered to keep coming back if they had not hoped to profit from it and, however attractive the ladies of the North-East, their charms hardly warranted a risky annual journey.

Legal Inc’s INClusive answer for routine matters

Although there is something slightly self-referential in quoting someone else who quotes you, I am pleased to see that something I wrote has been used to help make the the business case for electronic disclosure.

Legal Inc have launched what they call a “highly competitive commoditised solution for routine matters”. Called INClusive, the initiative aims to make it easy and cost-effective for lawyers to turn their lever-arch files of paper into an electronic resource which can be searched and reviewed on-line.

The quotation of mine with which they open their press release is this:

“One of my constant refrains is that technology is a leveller and that a small firm armed with appropriate outsourced technology can run rings round a big one who is not there yet.”

Reforming Case Management

The Commercial Court Long Trials Recommendations inevitably took centre stage in the session entitled Reforming case management at the Legal Week Litigation Forum last week.

I reached it in time to hear Ali Malek QC making it clear at the end of his speech that some of his cases simply would not fit into what he saw as an idealised time-frame. He was talking about the actual trial, and about cases whose factual or technical complexity could not sensibly be conveyed with a short statement of case and a brief opening.

The main act was Anthony Boswood QC, whose starting proposition was that every procedural change in his time had led to an increase in costs. The Commercial Court Recommendations provided no exception.

Smoking guns, haystacks and teeth

It is not often that I devote a whole article merely to the opening remarks of the chairman of a conference, but then it not often that one has a former Lord Chancellor in the chair. Lord Falconer’s speech at the Legal Week Litigation Forum which covered the economic drivers to litigation warranted the space I gave to it. This page covers the session in which I played a part.

I was a panellist in a session called Streamlined litigation: assuring efficiency through applied technology, along with Robert Brown, senior director of First Advantage Litigation Consulting Services and Rachel Coldbreath of Cleary Gottleib Steen & Hamilton LLP. That we never got as far as my prepared notes is by no means a complaint. Quite apart from the fact that I can use them somewhere else, the one hour allotted to us raced by in an unusual amount of audience inter-action. This was explained partly by the fact that this was a litigation audience rather than one narrowly limited to electronic disclosure, and partly by the layout of the room – members of a group facing each other round a square of tables are somehow more inclined to speak out than one in rows of chairs.

Litigation Forum: Facing the Future

Legal Week’s Litigation Forum this week, sponsored by Ernst & Young, was rather different from the (many) others I have been to this year. They have been e-disclosure conferences with litigation practice and procedure as a context. This week’s event was about litigation, with the disclosure element (from me amongst others) merely a component in the wider setting.

The former Lord Chancellor, Lord Falconer, was the chairman and, in the event, the giver of the keynote speech in the absence of Lord Goldsmith who had been billed to deliver it. The quality which made Falconer one of the few likeable members of Blair’s government was a nice line in self-deprecation. When he was a young barrister, he said, much of his work consisted of Peter Goldsmith’s returns; he was glad to see that nothing had changed.

Lehman Brothers had collapsed two days earlier, and the overnight news was that the US Government had bailed out AIG. Lord Falconer emphasised how the week’s events had changed the map for litigators. A year of the credit crunch had had little impact on the levels of commercial litigation, but that was because the large institutions – Bear Sterns and Northern Rock – had not been allowed to go under. A rash of insolvencies must follow the failure of a player the size of Lehmans and the consequential litigation will cover three main areas:

Practical Guidelines for e-Disclosure Management

Litigation solicitors in private practice and in-house lawyers would have done well to be at the Ark Group conference last week. Run over two days within spitting distance of the Tower, it had the title Adopting Practical Guidelines to e-Disclosure Management for the Legal Profession. Practical it was, as well as conveniently located.

Its supplier sponsors included FoxData, Autonomy, CaseLogistix by Anacomp, Guidance Software and LexisNexis, all of whom are also sponsors of the e-Disclosure Information Project which I run. Part of the Project’s aim is to make connections between suppliers whose service or software offerings are in different parts of the wood – between them, these suppliers and their applications collect data, process it, host it for review, help with analysis and make it available for exchange with others. There is overlap and competition between them, but also a common interest in helping practitioners – and judges – understand what is available to tackle the problems of e-disclosure. Part of my role is to help the would-be buyers see both the wood and the trees.

Understanding transparent search for UK litigation

The US courts are laying increasing stress on the technology and the methodology used to find documents relevant to a case. Even US lawyers are pulling the blanket over their heads at the implications of this, and UK lawyers will do the same if we just leave them to read the US judgments. We have a very different set of aims over here, but the technology and the principles developing to meet the FRCP challenge are exactly what we need, just turned to different purposes. The key term is “transparency”.

I have shied away from writing about the judgments of US courts which are the all-consuming subject of the year in American litigation circles. US v O’Keefe, Equity Analytics v Lundin and Victor Stanley v Creative Pipe all deal with the importance of accurate and reliable searches – embracing both the technology and the skill with which it is used – and between them, in their slightly different ways, appear to raise the level of equipment, qualification and skill needed to engage in the business of giving discovery / disclosure of documents. Serious stuff, in a country where so much of the focus appears, to UK eyes at least, to be on the technology and the methodology at the expense of the search for justice – with the emphasis on the word “expense”.

e-Disclosure conference list updated

The next round of conferences begins on 10 and 11 September with Ark Group’s Adopting practical guidelines for E-Disclosure management at which I am again speaking with HHJ Simon Brown QC. Our subject is Preparing Judges to make effective e-Disclosure decisions.

I have five more to do in London in 2008, plus one in Sydney and six regional talks for the Law Society. Next year’s bookings are beginning to come in.

By then, the trial period for the Commercial Court Recommendations will have run its course, the new draft directions order will have been in use for six months or so in the Mercantile Courts and we should be close to having a Technology Questionnaire as a required stage in the case management process. If you do not know what any of these things are, or what effect they will have, it is time to start finding out. Between them, they signal a more rigorous approach to case management, with particular emphasis on electronic disclosure. It will no longer be possible to treat Part 31 CPR and its Practice Direction as optional.

Hobs Legal Docs praise RingTail and IPro

London-based Hobs Legal Docs has strengthened its relationship with FTI Ringtail and now has five Ringtail Certified Services Technicians – apparently the largest headcount outside the US.

Managing Director Terry Harrison is also enthusiastic about IPRO’s eCapture which Hobs uses for EDD processing – the only user in Europe, it seems. Terry says of one job, which began with 7Gb of data and 370,000 pages, that “the whole process took just a few hours and the law firm, as well as their clients, were delighted at the time and cost saving.” Hobs now provide IPRO’s eReview application either on a hosted basis or for purchase for in-house use.

I mention this really because any lawyer facing 370,000 pages, or anything like it, who does NOT have the data handled electronically in “just a few hours” might like to think about whether the alternative – presumably printing the ages, copying them a few times, and setting some lawyers to reading through them – is consistent with the duty owed to either the client or the court. You might just do it by not recording much of the time spent on it – but that is not really consistent with the duty owed to your other partners.

Judges are starting to want to know about the comparative speed and cost of different ways of skinning the electronic data cat. It would be hard, I think, to show that the “print, copy and read” approach will stand scrutiny.

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Some conclusions from Socha-Gelbmann

As the dust settles on the 2008 Socha-Gelbmann Survey, it is perhaps useful to pick out a couple of the conclusions which particularly affect UK corporations, law firms and suppliers. As I have reported elsewhere (Project sponsors ranked by Socha-Gelbmann) those who sponsor the e-Disclosure Information Project were well represented in the rankings tables, with Anacomp, Autonomy Zantaz, Epiq Systems, Guidance Software, LexisNexis and Trilantic all appearing in one or more of the charts (the links, incidentally, are to their respective press releases on the subject).

George Socha and Tom Gelbmann have written a commentary on the market as it appeared to them following this, their last survey in this form. Commentary on commentary does not necessarily add value, but I highlight what they say about analysis, about a perceived shift from services to software and about staffing up to enable law firms to meet the challenges and take the opportunities which exist in this market.

A big culling exercise on holiday

After a while at this game, one begins to see parallels with the EDRM stages in areas of life which have nothing to do with documents. I am just back from a week in a remote cottage in Cornwall whose garden had been neglected for a year. In EDRM parlance, its document management was a mess and it needed a good cull before it was fit for review.

Meeting FoxData properly at last

Nearly a year after FoxData agreed to be the first sponsor of the e-Disclosure Information Project, I have at last been to see the company’s premises and met Ian Manning properly

The order in which logos appear beside these pages reflects the sequence in which companies agreed to sponsor the e-Disclosure Information Project. For those new to this site, the Project’s purpose is to increase awareness about electronic disclosure by bringing together all those with an interest in what is often the biggest single expense in civil litigation. Of all the players – courts, practitioners, corporate clients and suppliers – the group which is most remote from the practicalities is the one which has to make the decisions about case management, the judges.

Waltzing off to Australia

I have for some time been mentioning Australia as the jurisdiction to watch for developments in court rules and procedures relating to case management and, in particular, the handling of electronic documents.

They warrant a closer look on my part, not least because I have been invited to speak at Ark Group’s Corporate eDiscovery Conference Preparing your organisation for eDiscovery in Sydney on 13-15 October 2008. My main subject will be Responsibility for eDiscovery, which allows me to bring together sources as diverse as the UK Commercial Court Recommendations, the US Qualcomm sanctions case, the recent US cases (O’Keefe and Victor Stanley) on the use of search technology, and the express requirement in Australia to the effect that lawyers who appear before the courts ought to know something about relevant technology or get suitable help when they do not.

Aikens and Jackson go to the Court of Appeal

Two of the new appointments to the Court of Appeal attract my attention for different reasons. Sir Richard Aikens was one of those responsible for the Commercial Court Recommendations, and I used to instruct Sir Rupert Jackson when he was a junior barrister.

Mr Justice Aikens becomes a Lord Justice of Appeal on 19 November. He was Judge in charge of the Commercial Court from 2005-2006 and was chairman of the Aikens Committee which produced the Commercial Court Long Trials Recommendations now undergoing a trial period in that Court. His elevation means that he will not be there when the testing period comes to an end on 30 November.

Meeting people is right

Before you entrust your clients’ disclosure documents to a litigation support provider, it is worth getting to know a few, and that means real human contact, not just reading up about them. Meetings do not have to involve sitting round a table in an office.

The week in which the EU has purported to abolish the acre is a good time to mention the 450 acre field in which I hold meetings when people come and see me. It is called Port Meadow and lies a couple of minutes from my front door. The most recent such visitor, last week, was Andrew Sieja, CEO of KCura, whose Relativity document review application is making its mark.

More on Relativity in a moment. What is the value to me of meeting CEOs of litigation support providers and software companies? Why do they want to meet me? What is the best context for these getting-to-know-you conversations? And why does it matter in a business which, stripped of its fripperies, comes down to applying some technology to a pile of data so that lawyers can fight about it?

Catching up will have to wait

I had hoped by now to have written up the talks which HHJ Simon Brown QC and I gave to two groups of judges in the last two weeks, but time is against me and a short summary will have to do for now.

The audiences were first the Designated Civil Judges and then the Specialist Judges. The e-Disclosure Information Project, of which this site is the most obvious tangible output, began as an exercise in helping judges at the junction of two technical subjects – the CPR and technology. The first of these has been unchanged since 2005, but remains shrouded in a mystery which it does not deserve. The second changes all the time. My role is to try and unshroud the rules and to help introduce the technology to those who need it or who need to know about it if proportionate orders are to be made about disclosure.