March 29, 2012
I was sorry not to make it to Lord Justice Jackson’s speech to the Society for Computers & Law this week. Someone will doubtless write a full report in due course, but for now the Law Society Gazette brings us a summary under the heading Jackson warns of compulsory electronic era.
Most of what is listed in the article relates to the provision of IT services by the courts which lawyers will be required to use, including compliance monitoring requiring parties to tick boxes to show that they have achieved milestones required by the rules or by court orders. There will also be a form for completing budgets which will presumably take account of the feedback received from the form already in use.
We will have to wait and see what is meant by the “development of systems to manage the disclosure of documents”. Disclosure is an obligation which falls on the parties, who can choose from a wide range of software applications according to taste and budget to help them cull the dross and prioritise the rest for review and subsequent exchange. I can see immense value in a court-led system for holding the conjoined (and de-duplicated) disclosure of both parties after exchange or, at least, that part of it which goes into the equivalent of the conventional trial bundle or which is the subject of an application before the court. I am unconvinced that the court has a role in hosting (as opposed to managing) documents at any stage prior to this.
Civil servants and user-facing databases have not made for happy combinations in the past, as anyone who has to grapple with the online presence of HM Revenue and Customs will testify. I recently had to fill in a VAT form which one could only access if one knew its form number; it did not open on a Mac, had no provision for saving the data either locally or at HMRC and, when printed, would have used half a pint of green ink. It was invented, I decided, by a committee of accountants, tax inspectors and geeks with no human involvement at all. Let us hope that the Ministry of Justice involves real live users when devising its systems (and, perhaps, takes some advice on the terms of contract with its providers).
That much is beyond the control of Lord Justice Jackson. We can be in no doubt, however, that those things which are within his power will happen. As with eDisclosure itself, the technology is secondary to the process, and all the fancy forms and electronic box-ticking will not help if judges and those who appear before them do not take seriously their shared obligation to fulfil the overriding objective. That requires active management by judges as well as project management by lawyers; both have hitherto felt themselves rather above that sort of thing.
September 28, 2011
Court decisions about procedural hearings rarely tell the full story. There may be all sorts of reasons why two good firms of solicitors should find themselves, three months before a 10-day trial, at a pre-trial review onto which had been tacked a specific disclosure application and an application to strike out parts of witness statements. There may also be good reason why one of those parties had clocked up £47,000 in costs – “a very large sum of money for a one hour application” as the judge said mildly.
The case is Omni Laboratories Inc v Eden Energy Ltd, and the hearing came before Mr Justice Akenhead in the Technology and Construction Court. I am obliged to His Honour Judge Simon Brown QC for drawing my attention to it.
The ruling is short and I will leave you to read it, merely pointing to the points which appeal to students of case management. Read the rest of this entry »
August 11, 2011
The best judicial advocates of proportionate electronic discovery emphasise that, however significant the costs and other implications of discovery, they are but a part of a wider duty to make justice affordable. That duty is distributed – it lies with the judges charged with managing cases and those who devise the rules and procedures; it falls on lawyers and on their clients whose justice is at stake; it is part of the duty of government. Lord Justice Jackson touched on all these in a speech in Singapore which began with Plato and Aristotle and, precisely 45 minutes later, came back to them. The occasion was the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law.
I do not usually rush out reports of speeches on the day of their delivery, preferring a more leisurely approach with reflective comment. This is a straight transposition from my notes, with little critical or or analytical thought applied.
The evidence in Aristotle’s day, Sir Rupert said, fell within a manageable compass. The instant communications now critical to business were not a boon in all respects. They remain in permanent form to be studied by those with the time and motive, subjected to a full and painstaking analysis by lawyers, and generating “prodigious and sometimes terrifying costs”. Read the rest of this entry »
December 22, 2010
Metadata, as we all know, is data about data. Perhaps next year we could have predictions about predictions – an article put up at about the beginning of November guessing what the various pundits will include in their list of predictions for 2012, based on their known interests.
My own, for example, are likely to include one about medium-sized firms taking work away from large ones, one about the e-Disclosure Practice Direction, one about the e-Disclosure implications of some pending legislation, one about US-EU privacy conflicts, a side-swipe at judges who fail in their duty to manage the discovery aspects of the cases, and a poke at the government, some civil servants or a government agency.
That is what I gave this year, anyway, as my contribution to Computers & Law’s seasonal collection of predictions. There are links to all the other contributions down the right-hand side. I am not volunteering, but it would be interesting to consolidate them into a Top 10 and review them at the end of next year to see how many of them came good.
I will not attempt an index of all the other sets of predictions made around the world which relate to e-discovery. You should not miss those put up by the Posse List, which thankfully declines to take the whole subject too seriously. I like in particular the prediction that “Browning Marean’s great-great grandchild writes e-book on the implications for legal holds.”
I think I am safe in suggesting that most of us in this field will be even busier next year. I do not aspire to beating the 150,000 miles which I flew in 2010, but who knows? I do expect to do more UK road and rail miles (I mean even more than I did in 2010, not more than 150,000 miles), largely as a result of my first C&L prediction, the one about medium-sized firms.
November 10, 2010
The Master of the Rolls is considering the idea that judges should rate the quality of the barristers who appear before them, with marks out of ten for various elements in their performance – a kind of Strictly Come Advocating, I suppose. One pictures judges holding up scorecards at the end of each hearing.
Two letters in today’s Times come from judges reacting to this. One, from His Honour Judge David McCarthy, points out that barristers must be fearless in defence of their clients, against the judge if necessary, and suggests that this duty may be compromised if the judge is to report on the advocate’s performance. The other, from His Honour Judge Simon Brown QC, focuses on electronic disclosure and draws attention to Lord Justice Jackson’s recommendations for training for judges as well as for barristers and solicitors, and to existing powers which put lawyers at risk of personal costs orders.
As you might expect from me, I am against this box-ticking approach to quality; quite apart from the fact that judges have quite enough to do already, it reminds me of all those dull little people from Ofsted grading schools and teachers by almost every black and white standard apart from the actual quality of the education received by the pupils – “meeting the target whilst missing the point” as New Labour’s epitaph has it. The market is a pretty good regulator: good barristers get more work and in time rise to become judges; the rest sink to oblivion, perhaps as low as a post at the Crown Prosecution Service – see Judge questions father’s kidnap charge both as justification for my comment and for an example of existing judicial power to make public criticisms of lawyers where, as in this case, the borderline between incompetence and stupidity becomes blurred.
If we must have such an approvals system, then it is only fair that it works the other way round as well, giving barristers the opportunity to rate the judge. Picture a case management conference where the judge has merely ticked a box for standard disclosure, or told the parties to “go away and agree a protocol for disclosure” as I heard one say recently. The judge might get one out of ten for case management because he turned up. The results could be published, and parties could try and avoid courts where the judge ignores his responsibilities in this way.
September 28, 2010
There is a general sense that the eDisclosure Practice Direction has broad acceptance amongst lawyers – those who have read it before commenting on it, anyway. It is not just another CPR burden, nor is it something to fear – whatever you may hear from scaremongers with an interest in making it seem so.
I do not need to declare my interest in the success of the eDisclosure Practice Direction and its Electronic Documents Questionnaire. I helped draft it and have advocated its principles – of informed co-operation as a pre-requisite for proportionate disclosure – for years. It is good then to report that the initial reactions from lawyers seem to be favourable, even amongst those who accept that there are challenges. Most recognise that the challenges derive from the existence of the electronic documents, not from the measures being taken to control them.
We need to know, in due course, how it works out in practice. Meanwhile, it is worth drawing attention to two wholly predictable reactions which emerged within a few days of publication. The first is properly the subject of debate, though that debate will be more valuable when the proponents on each side have some experience of working with the PD, or have at least run their eyes down its main provisions. The second may appear a matter of nuance, but it is a nuance which matters. The common element is an interest in making the implications of the PD sound more alarming than they are.
I am referring to:
- The exaggeration by some lawyers of the new burdens allegedly imposed by compliance with the E-disclosure obligations in the rules
- A similar exaggeration by some technology providers of the same burdens, shading the useful “we can help” into the less useful “you have to involve us to do the job properly”.
Whether the dominant motive is the overriding objective or increasing your profits (and both are perfectly respectable drivers) these exaggerated reactions turn the end user (the lawyers from the perspective of the technology provider and the clients who can choose not to litigate if the system seems inimical to cost-effective litigation) against the whole subject. Let’s debate this by all means, but let’s start by looking at what the obligations actually add up to. Our sources are the documents themselves, the eDisclosure Practice Direction and the Electronic Documents Questionnaire. Read the rest of this entry »
September 6, 2010
An Inquiry into the law, practice and management of the discovery of documents in litigation before Australian Federal Courts was launched by the Attorney-General in May 2010. I wrote about it at the time (see Terms of Reference for Australian Discovery review), and see it as one of the most important pending developments in discovery (and therefore necessarily in electronic discovery / e-disclosure) in hand anywhere in the world at the moment. The other, of course, is the UK’s e-disclosure practice direction and electronic documents questionnaire which will take effect on 1 October 2010.
These two initiatives have significance, even for the US as it struggles with the implications, in time and in costs, of handling electronic documents proportionately. I am moderating a panel at the Masters Conference in Washington on 4 to 6 October which will consider these UK and Australian developments and will suggest that even the US has something to learn from them.
The duty of consulting and reporting on discovery falls on the Australian Law Reform Commission (ALRC). The ALRC has set up a blog called Discovery of Documents in Federal Courts to report on its progress, to raise subjects for discussion and to capture comments. The Attorney-General’s Terms of Reference can be found there; as I said in my original post, the reiterated use of the words “as early as possible” points the enquiry in what is obviously the right starting place. Read the rest of this entry »