Jackson – Solicitors must be ready for electronic working

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.

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

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 »


Lord Justice Jackson in Singapore: Piloting Civil Justice Reforms

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 »


E-Discovery / E-Disclosure Predictions for 2011

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.

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If judges can rate barristers then barristers should be able to rate judges

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.

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Over-estimating both costs and risks in the eDisclosure Practice Direction

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 »


Inquiry blog – Discovery of Documents in Australian Federal Courts

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.

Masters Conference for legal professionalsThese 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 »


Discovering new methods of persuasion

August 9, 2010

As you know, part of my role is to persuade, and I am always looking out for new ways of getting people to consider how best to handle electronic documents. It is the mere consideration which matters – no-one is saying (well, I am not, anyway) that every case, or even most cases, require you to jump about preserving and collecting everything in sight, but anyone who engages in litigation ought to have some idea of the costs and other factors which apply when litigation threatens. Knowing the rules and being familiar with the occasional judgment is not a bad start, and is the least one might expect from a lawyer who purports to practice civil litigation.

I write a bit, and speak at conferences, do webinars and the occasional podcast or video – any method, really to promote awareness of the subject. What is the proper response, however, when you come across an audience which has self-selected as being interested in electronic disclosure but which has not heard of the Practice Direction to Part 31 CPR (it has been in the CPR for five years), or cases like Digicel v Cable & Wireless, Earles v Barclays Bank or Goodale v Ministry of Justice? Desperate remedies are needed, and I think I found one at the weekend:

New method of persuasion Read the rest of this entry »


Australian ediscovery round-up

June 28, 2010

My conclusion after my recent visit to Sydney was that every jurisdiction which engages in ediscovery thinks that it is behind the others. This is certainly not true of Australia, and  Master Whitaker and I were not merely being polite when we said that we had come to find out what is happening there for our own benefit, as well as bringing news of developments in the UK.

There is enough going on down there at the moment to warrant a quick summary. My own accounts of our visit to Sydney are here and here,  and I wrote before I went of the Attorney General’s Terms of Reference for a Discovery review.

Since then, Geoffrey Lambert of e.law has tipped me off about a further development, the Civil Dispute Resolution Bill 2010 (Bill) which, if enacted, will require a “Genuine Steps” process by which parties must show formally that they have tried to settle a dispute, with costs implications if they do not do so. I am slightly chary of developments like this – the experience in England & Wales of court-driven settlement is that the mechanics of managing the dispute take second place to attempts to impose a rapprochement which is itself expensive and not necessarily what the parties want.  There is a distinction (for which we must thank Professor Dame Hazel Genn QC) between “a just settlement” and “just a settlement”, and there is a difference too between mediation to resolve a dispute and co-operation to conduct it efficiently.  If judges spent less time on the former and more time imposing the latter, we might see the costs of litigation come down whilst allowing the parties to have their day in court. It will be interesting to see if Australia can take the benefits of alternative dispute resolution without losing the drive towards more efficient procedures for managing contention. Read the rest of this entry »


Lunch-time talk in Sydney with Nuix and KPMG

June 13, 2010

Knowing that Master Whitaker and I were going to be in Sydney for the Chilli IQ eDiscovery conference, Eddie Sheehy of Nuix invited us to speak at a lunch organised by Nuix and KPMG. The venue was a room on the 15th floor of KPMG’s office overlooking the quay at Barangaroo and the mouth of Darling Harbour, and the audience comprised senior people from large financial and other corporations.

I like this kind of event, because it gets to audiences who are capable of long-term decision-making. Once litigation has commenced or a regulatory investigation is under way, the range of options becomes limited – you are where you are in terms of preparation, and there is often no time to choose the lawyers, decide on the technology or take a long view on the strategy. It is like being a general in the field the night before the battle; your options for deployment and tactics are constrained by what has been done or left undone in the past. The level of decision-maker round that lunch table is in a position to see, for example, the aggregated costs of last year’s litigation, which gives some incentive to plan for next year’s – and to do something about it. Read the rest of this entry »


E-Disclosure in Liverpool with Cats Legal, Epiq Systems and Dominic Regan

June 4, 2010

I have to take back what I said yesterday about my rail trip to Liverpool. I had expected the usual shambles, those delays with risible explanations and insincere apologies which are the norm on our overcrowded, badly-run rail network. In the event, the trains ran on time and the connections went smoothly. The new government’s warning to Network Rail directors about their obscene bonuses will obviously not keep their noses out of the trough, but may force them to pay some attention to the poor sods who have to travel with them.

A point did arise about my journey, however, which relates directly to something which came up at the e-disclosure seminar which was its purpose. It concerns transparency of pricing and the potential user’s uninformed expectation as to the costs of engaging any litigation software or services provider. My expectation from the railway bookings web site was that my return ticket would cost £247 (a three-hour journey, followed by three hours performing on my feet, followed by a three-hour journey back, warrants a first class seat, away from the unwashed masses dribbling dogburger slime down their chins whilst they boast loudly of their sex lives on their mobile phones). Face-to-face across the counter, however, the ticket seller told me that, by adjusting my departure time a little, I could get the ticket for £134, and now that I go back and look more closely, I see that this information was buried on the web site.

The point is that I only found out the true cost by speaking to somebody, and it was very much lower than I expected. This came up during the seminar when Cats Legal and Epiq Systems made it clear that many of the jobs which they do are for relatively small matters and for fees which are low relative to what can be achieved and what can be saved. The only way lawyers will find that out is by ringing up a supplier (or preferably more than one), outlining the task, and asking for an estimate. Armed with that estimate, they can make proper decisions as to the most proportionate route, decisions which inform internal strategy as well as discussions with opponents and the court. You need this information also when the boot is on the other foot and your opponents argue that proper electronic disclosure would be too expensive. That may be true, but if they have not sought quotations, how can they make that assertion? Read the rest of this entry »


Liverpool EDisclosure event on 3 June

June 1, 2010

The Liverpool Law Society is host to a three-hour course on electronic disclosure on Thursday, 3 June starting at 13.30 pm. The speakers include Professor Dominic Regan and me, together with litigation software supplier Epiq Systems and litigation services supplier Cats Legal.

The venue is the Second Floor, the Cotton Exchange, Edmund Street, Liverpool L3 9LQ.

The format and content are similar to that of the event at Ely Place Chambers last month – see E-Disclosure law, practice and technology in one educational package. Dominic Regan and I will talk about the e-disclosure implications of the Jackson report, the proposed new e-disclosure practice direction and questionnaire, including Master Whitaker’s judgment in Goodale v Ministry of Justice, and about the recent cases which bring this subject to the forefront for lawyers and their clients. The prediction which I made for the Society of Computers & Law at the turn of the year was that e-disclosure failures would become public and personal in 2010, with clients, law firms and individuals named in judgments in circumstances which they would rather avoid. That prediction is being fulfilled, and the penalties generally involve costs, including adverse costs orders. The two providers will explain what technology can bring to the exercise, and what types of software and services are available. The effect of this joint approach is that the interplay between rules, practice and technology will be explained. Read the rest of this entry »


CEIC 2010 comes to an end

May 27, 2010

CEIC 2010 is winding down here in Las Vegas. Whatever measure you take – the quality of the sessions, the opportunity to catch up with people and meet new ones, the sheer numbers of people attending (1,300 or so), the venue, or the glimpses through the bus windows of this not-quite-real city on the way back from dinner last night – it has been a great success.

For those unfamiliar with it, CEIC stands for Computer and Enterprise Investigations Conference and is run by Guidance Software, whose data collection and processing applications are used all over the world for everything from one-off defensible collections to enterprise-wide network collection applications and the consultancy which goes with it. My particular interest, electronic discovery, is only a part of what the applications are used for – internal investigations, HR incidents, government and military needs, and rapid reaction to external or internal demands for information, are all covered. It is deeply technical stuff, and its users need technical training to match. CEIC allows all those involved – from hands-on lab types to decision-makers – to gather once a year, to top up their skills, to meet others with the same or adjoining skills, and to find out what drives the other players. The technical people increasingly need to know about the context in which they collect data, and those who devise strategy must have some idea of technical difficulties and solutions. Read the rest of this entry »


IQPC the best London e-disclosure conference again

May 22, 2010

The three-day IQPC Information Retention and eDisclosure Management Summit is over for another year. It is the biggest and best conference in the London calendar and one which genuinely aspires to do better each year. Everyone I spoke to seemed to think that it had achieved that aspiration.

I have to be careful here. I am on its advisory board and was involved in some of the planning going back to a late-night session in a Brussels hotel bar last October. I also clocked up 8 hours on its platforms this year, so I am perhaps not wholly impartial. It has the greatest concentration of people interested in e-disclosure, from judges to suppliers to lawyers to clients, and is the place to be for someone whose job involves carrying information between these players. My main interest lies in talking to people, which inevitably means that I attend few sessions beyond those in which I am involved. The loss is mine – there was a packed programme of important and interesting subjects and anyone with a stake in electronic disclosure would have benefitted from being there.

Monday was a workshop day. I took part in a three-hour session run by Legal Inc called Ready for the Regulator: the importance of equality of arms. It was led by Vince Neicho of Allen and Overy who, characteristically, had left nothing to chance in our preparation. Bill Sillett, an enforcement officer at the Financial Services Authority, had provided a scenario which was no less plausible for involving almost every aspect of an FSA investigation – what started as an apparently routine matter grew into a multi-jurisdictional one with criminal implications, SEC involvement, and a potential conflict between the company and some of its employees. Antony Montague, Associate General Counsel at McGraw Hill Companies, Matthew Davis, Litigation Support Lawyer at Hogan Lovells, Peter Cladouhos, Practice Support Electronic Discovery Consultant at Paul, Hastings, Janofsky & Walker LLP, and I brought our respective professional inputs to this scenario, with Vince as an able narrator and an audience which caught the spirit of the thing and joined in. If we ran out of time before we run out of script, that was because the audience was sufficiently involved to take us down useful byways. The main take-away for me was the confirmation that the FSA looks well on those who are both willing and able to co-operate at a data level as well as at a higher factual level. Read the rest of this entry »


Imminent reform in prospect for Australian discovery process

May 14, 2010

Reform of the discovery process in Australia is said to be “imminent”, according to an article in the New Lawyer. The article says that the Attorney General has asked the Australian Law Reform Commission to explore options to promote the early and proportionate exchange of information and evidence in court proceedings with an emphasis on the role of the courts in managing discovery by using their case management powers. My thanks to Simon Price of Recommind for drawing my attention to the article.

The article refers to the experience of international jurisdictions. Those of us concerned with improving the court process are enthusiastic about the exchange of ideas between jurisdictions, particularly where the system of law is similar to ours. Lord Justice Jackson visited Australia as part of his fact-finding tour before writing his Preliminary Report, and we studied the Australian Electronic Technology Practice Note CM 6 when drafting our own new practice direction and Questionnaire. Read the rest of this entry »


Recommind webinar: Technology is Changing the Economics of e-Disclosure, Are You Prepared?

May 13, 2010

My title is the name of a webinar which I am doing with Jason Robman of Recommind on 25 May. Its description reads as follows:

The enormous costs and time associated with the e-Disclosure process are staggering, with the document review phase alone frequently racking up fees that in some cases actually eclipse the amount at issue.

The reason for this is straightforward: the approach to identification, collection, processing, review and analysis of information – including technology, people and processes – haven’t kept up with the explosive growth of electronically stored information.  Law firms and corporations that continue to use outdated approaches are simply too slow, inaccurate and inefficient to keep up with today’s digital information volumes and diversity and are finding themselves at a competitive disadvantage to their better-prepared peers.

In this webinar learn how law firms, corporations and the courts are embracing the use of new technology for more accurate investigations and to reduce e-Disclosure costs.

DATE: Wednesday, May 25, 2010
TIME:  4:00 pm to 5:00 pm BST

To Register for this Webinar: https://www2.gotomeeting.com/register/268150227

Those who visit this site regularly will know that this theme recurs here. The technology itself is gaining on the problem, but the approach which lawyers and courts adopt often amounts to using the methods of paper days. The handling of electronic documents is not just “like paper but different” but requires a completely different approach. The risks are apparent from several recent cases. The advantages for those prepared to recognise them, are considerable, not just in terms of terms of winning cases but for winning clients.

Do join us on 25 May at 4.00 pm.

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E-Disclosure law, practice and technology in one educational package

May 13, 2010

The first of the E-disclosure seminars organised jointly by Professor Dominic Regan and me took place yesterday at Ely Place Chambers. Dominic and I were joined by Senior Master Whitaker and by speakers from three technology providers, 7Safe, Legal Inc and FTI Technology to bring together the law, the practice and the technology in one afternoon session.

The expressed rationale for the e-Disclosure Information Project is to bring together all those with an interest in making electronic disclosure efficient and cost-effective. That crossover is important -  knowledge of Part 31 CPR and its practice direction is a good start, and the increasing number of cases involving e-disclosure failures send a strong warning to lawyers. Lord Justice Jackson drew attention to the need for more active case management by judges, and the proposed new practice direction and ESI Questionnaire raise the temperature on that front. Meanwhile, the technology reduces in cost as it increases in capability and, if properly used, maps well to the steps which parties and the court must take together, first to decide on the scope of disclosure and then to achieve it. The case management itself must be proportionate to what is involved. Read the rest of this entry »


The 2010 Duke Conference on US Civil Litigation

May 4, 2010

No one with any interest in the US Federal Rules of Civil Procedure could be unaware of the debates which have been going on about the costs of civil litigation and, in particular, of discovery. A conference is being held on May 10 and 11 at Duke Law School, Durham, NC to consider new empirical research by the Federal Judicial Centre and other data and papers prepared by lawyers, judges and academics.

Chief US Magistrate Judge Paul Grimm kindly tipped me off today that the materials for the conference are available on a public website which contains a mass of material relevant to the discussions. Read the rest of this entry »


Vector Investments: successful claimant made to pay for unhelpful disclosure

March 14, 2010

Is quite rare to come across UK cases where the quality and costs of disclosure become the subject of a reported judgment. In rare cases such as Digicel, Earles or Goodale, disclosure is either the primary subject-matter of the judgment or is a sufficiently important part of it that (if the judgment is reported at all) we get to hear of it.

Judgments must, in fact, be made every week which record adverse comment, or adverse costs orders, against a party which has failed to comply with its disclosure obligations. Whilst these are often to do with under-disclosure (that is, a failure to disclose that which ought to have been disclosed) it is just as important to know of cases where one party imposed an unnecessary burden on the other by over-disclosing or by the manner in which the documents were presented to the other side. The only reported case I have ever come across on this pre-dates the 1999 rules and, indeed, the days of electronic documents.

Vector Investments v Williams [2009] EWHC 3601 (TCC) (05 November 2009) is of the latter kind. I conclude from the references in it to “files” that disclosure was given on paper, which itself raises questions, but not those which came up between the parties. It is a judgment of Mr Justice Ramsey in the Technology and Construction Court. The main interest as to costs generally lies in the judge’s consideration of the liability for costs following a compromise and a Tomlin Order. The only outstanding point for determination was the assessment of costs, and the judge felt obliged to consider the whole subject of the principles applicable to assessment of costs. You can get the flavour of it from a sentence in paragraph 71 which reads “How should the court approach cases where a claimant has made offers which do not comply with Part 36 and which have been beaten by the claimant as a result of settlement?”. Read the rest of this entry »


New e-Disclosure articles on the SCL website

March 14, 2010

The website of the Society for Computers & Law has two new articles about electronic disclosure.

One is by barrister Clive Freedman of 3 Verulam Buildings and is called Disclosure: the Proposed Rule Changes. It summarises succinctly the elements in Lord Justice Jackson’s Final Report relating to disclosure and to electronic disclosure – I make that distinction because the labels serve to separate the principles which apply to the scope of disclosure and the court’s role in managing disclosure (on the one hand) from the elements which relate specifically to the disclosure of electronic documents (on the other). In practice, since the vast majority of documents to be disclosed are electronic, this distinction may seem unimportant. Lord Justice Jackson, however, treated them under separate headings and, for the moment at least, discrimination between the “what” and the “how” is a useful one, although they are, of course, interlinked – the third question “how much?” introduces cost into the equation, as proportionality demands that it must. Read the rest of this entry »


Standards and outcomes: Hitler, the NHS, the police, social workers – and e-Disclosure

March 13, 2010

My heading, I appreciate, looks like the components of some random word game. There is in fact a connection, and it is to do with the supremacy of result over procedure and of destination over the journey. Hitler, the NHS and rest are called in aid as demonstrations because both came under my eye last week without their place in the jigsaw being immediately apparent to me. What really matters in disclosure / discovery is the outcome in terms of evidence considered by the parties and the court, not mere compliance with standards apparently imposed by the rules. The client is interested in the outcome, as are victims of crime, abused children and hospital patients. Rules matter, but they matter less than the end-result. Read the rest of this entry »


Spring Offensive in the eDisclosure War

March 8, 2010

It feels suddenly as if a new phase is opening up in the war to tackle the wasted costs of e-disclosure. If the Rule Committee’s recent failure to grasp the nettle seemed a rebuff, there is a new Spring Offensive coming. A busy week moved us forward on several fronts.

I would have been content for the week with the signing of a new sponsor (Nuix) and the publication of Senior Master Whitaker’s judgment in Goodale V MoJ which, as I said in my article on it Goodale v MoJ – a template judgment for active management of eDisclosure, is as important as a model for e-Disclosure case management as for the fact that our ESI questionnaire is annexed to it and thus made public. There has been more than that, however. Read the rest of this entry »


Goodale v MoJ – a template judgment for active management of eDisclosure

March 5, 2010

The publication of Senior Master Whitaker’s judgment in Goodale v Ministry of Justice is important for reasons beyond the fact that the parties used the ESI Questionnaire which is annexed to the proposed e-Disclosure Practice Direction and which is also annexed to the judgment. The judgment includes a careful recital of the problems raised by electronic documents and of the rules which already cover them, as well as a copybook example of the analysis which a judge ought to make once it is clear that electronic documents exist and should be disclosed.

Senior Master Whitaker is, of course, the chairman (and I am a member) of the working party which drafted both the Practice Direction and the Questionnaire. You will probably be aware by now that the Civil Procedure Rule Committee recently decided that the appropriate course was to kick the PD into the long grass of a sub-committee. The Goodale judgment shows how much can be done by active management from a judge who is willing to roll his sleeves up. Read the rest of this entry »


E-Discovery and Judicial Involvement in Australia

March 1, 2010

Project Counsel is the sister site to The Posse List, both run by the ubiquitous Gregory Bufithis. Project Counsel’s web site carried an article on 25th February with the title In Australia, e-Discovery and enhanced judicial involvement come of age . That is a high ratio of interesting key words to me, with “Australia”, “e-Discovery” and “enhanced judicial involvement” all being hot topics.

The article summarises a look taken by Australian law firm McCulloch Robertson at the development of active court involvement in the management of cases generally and electronic discovery in particular. It includes many elements in common with those which we either have or are promoting in England & Wales following the Jackson Report on Litigation Costs. The general aim is the reduction of the cost of litigation and minimising unnecessary delays. It is some consolation to me, following the recent side-lining of our draft e-Disclosure Practice Direction and ESI Questionnaire, that the introduction of the equivalent in the Federal Court of Australia (originally Practice Note 17, now CM 6) was as long drawn-out and painful a process as we are finding it here. Australia got there in the end, a little over a year ago. Our draft Practice Direction took account of the arguments and difficulties experienced in Australia amongst other places.

Doubtless we will get there in the end, and catch up with not just Australia but Singapore and Canada, both of which introduced also new e-Discovery rules in 2009. We used to lead the world in such things, but that was true also of cricket and economic prosperity. Read the rest of this entry »


You cannot really complain at a full InBox and lots of tweets

February 26, 2010

A day in London leaves me with a pile of e-mails and a heap of tweets – all signs of a lively market, and to be welcomed despite the time it will take to catch up. Add a crusading podcast, a decent lunch, and an interesting meeting and it all adds up to a useful day. But, as an aside, why do some businesses go out of their way to alienate their customers?

I blame Twitter myself. I used to be able to go out for a day and keep up, more or less, with the e-mails as they came in, so that I had only to file them on getting home. These days, that stream is supplemented by a near-constant flow of tweets, a high proportion of which carry links to interesting articles. Again, I can usually keep up with that flow as it comes by. The problem today was that my three meetings had gaps between them only just long enough to walk from one to the other. An alarmingly high number of urban road accidents are apparently caused by people dealing with their e-mails and tweets whilst walking and, interesting and important as it all was, I was not prepared to be run over in the cause. The journey home from London to Oxford appeared to take about five minutes, so I presumably slept through it and was very lucky not to end up in Hereford.

The result, now I am home – on my left a screen full of interesting tweets; on my right an Inbox full of e-mails. I am not complaining, you understand; there are plenty of businesses at the moment which warrant no tweet-flow and generate no e-mail traffic. Besides, today’s stream has included, in no particular order, the following: positive reactions to suggestions which I have floated about e-Disclosure road-shows; progress on a proposed supplement in The Times on legal efficiency; a message with “massive congratulations on the ease and value” of my blog; a link to a white paper which looked familiar before I realised that I co-wrote it with 7Safe; interest in sponsoring the Project from a big player in search; a further step forward on the Women in eDiscovery initiative which we are running; a product release by one of my sponsors; an article from Australia headed “e-Discovery and Enhanced Judicial Involvement Come of Age” which is extremely timely; a US article which uses a post of mine as the starting point for reflections on EU privacy; and some re-tweets of an article I published before I set off this morning. That is a lot to follow up, but it is all good stuff. It will have to wait until tomorrow. Read the rest of this entry »


Moving forward on all fronts

February 25, 2010

I am off today to record a podcast for CPDCast about the e-Disclosure components of Lord Justice Jackson’s report. You may recall that I was booked to do this on the day before the Civil Procedure Rule Committee met to discuss our draft Practice Direction and ESI Questionnaire for the third time. I had got as far as sitting in front of the microphone and completing the sound-check when some intuition made me abandon the whole thing. By tomorrow, I said, we will probably know that the practice direction has been accepted by the Rule Committee, and it seems daft to make a recording which will be out of date tomorrow.

Well, as we now know, the Rule Committee felt unable to pass the draft on which we had worked for 18 months and of which Lord Justice Jackson had said

In my view, the substance of this practice direction is excellent and it makes appropriate provision for e-disclosure. On the assumption that this practice direction will be approved in substantially its present form by the Rule Committee, I do not make any recommendation for procedural reform in relation to e-disclosure. Read the rest of this entry »


No need to wait for the eDisclosure Practice Direction and Questionnaire – just get on with it

February 23, 2010

The decision (or, rather, the non-decision) of the Civil Procedure Rule Committee to send the e-Disclosure Practice Direction and EDisclosure Questionnaire off into the sidings of a sub-committee has been the equivalent of coming up behind a funeral cortège whilst driving to catch a train. You have to show respect, of course, but you can feel time and money dripping away as you clench the steering-wheel in frustration.

The delay will not stem the creation of electronic documents nor moderate the need of lawyers to manage those documents for litigation. The purpose of the Practice Direction and Questionnaire is to streamline that effort and that expenditure so that the time and money are spent on things which matter. The worst fear is that the Questionnaire will end up in some appendix as a ‘Guide to Best Practice’ or something equally wet. If the obligations to discuss sources of data have sat unused in the Practice Direction to Part 31 CPR for over five years, it seems unlikely that the addition of a best practice guide will do much to remind lawyers and judges of their obligations, still less actually help with the process, which is what the combination of the draft documents intends. Read the rest of this entry »


Jackson untroubled by delay to e-Disclosure Practice Direction

February 23, 2010

I do not generally deal in instant news in these pages – considered reflection is more my style and, besides, there is normally a queue of things to write about.

At the top of that queue at the moment is a draft article which picks up on things other people have written about the delay to the introduction of the proposed E-Disclosure Practice Direction and Questionnaire. One of those articles is by Professor Dominic Regan, but that can make way for a brief report which he sent me overnight. It reads as follows:

I attended the Civil Justice Section of Law Society dinner last night. Two nuggets emerged:

1. Sir Rupert Jackson announced the formation of a Judges Council of four members including him and Kay LJ which will meet on 4 March to oversee and push change from the top.

2. Sir Rupert took five questions. One was mine. How did he feel about the Rule Committee not passing the e-Discovery material? He said that the will of the committee had to be respected. He was not to impose his will. He gave the clear impression he was not troubled; it will happen.

Sir Rupert is a courteous and patient man and he faces bigger battles than this one. Whether one respects the will of the Rule Committee, as he does, or merely accepts it, as I do, as the equivalent of a traffic jam or train delay, the important thing is to get there in the end. I started working on this in 1993, so I guess I can wait a little longer.

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There is more to FTI Technology than Attenex and Ringtail

February 20, 2010

My self-imposed job description involves flitting between all the players in the electronic disclosure / electronic discovery world, picking up information and ideas from one place and dropping them in another. I talk to judges, lawyers and technology suppliers, read a lot of web-based information and exchange e-mails and tweets with people from every corner of the e-Discovery world – “world” in both the figurative and literal senses. I am interested in the court rules, the practice and the technology and in how they relate to each other.

I keep secrets where I have them – from working with lawyers on behalf of their clients or when I am told of pending technology or marketing initiatives, to say nothing of the gossip which flies around – but, on the whole, my role is to talk and write about what I hear or read. The only filter apart from confidentiality is whether I am interested and think that others will also be interested.

This is a privileged position – I have lots of privileges, but the ability to pick off only the things which interest me outranks the rest. It allows me, magpie-like, to pick out the bright and shiny things and leave the rest on one side.

AttenexOne of the bright and shiny things in the litigation software market is Attenex, whose visual analytics caught my eye some time ago for precisely the reason why they attract lawyers – they make it possible to grasp the overview and to drill down to the detail in a way which is simultaneously efficient and intuitive. Attenex is now owned by FTI Technology, as is the equally iconic Ringtail Legal.Ringtail FTI has now had time to bed these products down into their overall (and very broad) software and services offering and I thought I ought to go and see where they have got to and how the pieces fit together in the process. Craig Earnshaw, managing director of FTI technology in London, invited me in for an afternoon recently to bring me up to date. Read the rest of this entry »


Dominic Regan on the Jackson Report: the word of the moment is momentum

February 18, 2010

There is a great deal of interest being shown in electronic disclosure amongst UK lawyers at the moment. Some of the activity is reported in my post Containing the interest in the eDisclosure Practice Direction and ESI Questionnaire. That ended with the disappointing (see what moderate words I can use if I take a deep breath first and try) news that the Civil Procedure Rule Committee felt it necessary to refer some aspect of the draft Practice Direction and ESI Questionnaire to a sub-committee. We (that is, Master Whitaker’s Working Group who drafted these documents) have been assured that the substance of both documents will remain in the form endorsed by Lord Justice Jackson in his Final Report [Para 2.5 on page 366].

It seems to me that the move towards proper management of electronic disclosure is now inevitable, sub-committee or no sub-committee. I am fielding requests to go and talk to law firms. Page views on my blog, which averaged around 5,000 in the closing months of 2009 were at 7,000 in January and are heading for the same number in February. If the trigger is Jackson, the parts of which lie in our own hands are the education message and the backing for the Questionnaire which, remember, does not merely make you identify your own sources, but gives you an early look at those of your opponents. Clients like early looks at the scope of the task ahead. Read the rest of this entry »


Containing the interest in the eDisclosure Practice Direction and ESI Questionnaire

February 14, 2010

There has been much interest in the draft eDisclosure Practice Direction and the Questionnaire which forms part of it. Lawyers and education providers keep asking for a sight of it. Lord Justice Jackson commended it. Rule-makers in other jurisdictions have been watching out for it. I aborted a Jackson-related podcast last week because we were so close to a decision on it. A lot of initiatives have been on hold waiting for it. Friday was the day of its third appearance on the Rule Committee agenda.

I have had to stockpile the mass of interesting US material which has come my way since LegalTech in order to focus on the domestic front. The very great interest which has been shown in the pending Practice Direction and ESI Questionnaire intensified as the day approached for the Civil Procedure Rule Committee’s third consideration of the documents which Senior Master Whitaker’s drafting group has been working on for nearly two years. I have fended off all requests for copies of it by referring to the rule that documents under consideration by the CPRC are not published until annexed to the minutes of the meeting at which they were discussed. That third meeting was held on Friday. Read the rest of this entry »


Stratify eDiscovery Super Session panels at LegalTech

January 29, 2010

I have already mentioned one of the four panels which Stratify is running on Tuesday, 2 February in the Sutton Parlor Center Room at the Hilton in New York. The sessions are as follows:

  • 8.30 Can we have our cake and eat it, too?  Cooperation vs. zealous advocacy
  • 10.15 How much justice can we afford? Rescuing civil justice from the costs of eDiscovery
  • 12.45 Is the tail wagging the dog? Winning on the law instead of winning on eDiscovery
  • 2.30 The Good, the Bad, and the Ugly? International judges panel comparing different legal systems and eDiscovery approaches Read the rest of this entry »

Welcome to Stratify as new Project sponsor

November 18, 2009

I am very pleased to welcome electronic discovery software company Stratify as a sponsor of the e-Disclosure Information Project. Their addition to the list of sponsors coincides with the opening of their London office and data centre, as well as Stephen Whetstone’s welcome appearance as a panellist at the Thomson Reuters conference last week.

Stratify is a subsidiary of Iron Mountain, Inc., the information protection and storage services giant. Iron Mountain has long-standing facilities and clients in the UK and EU (see the Iron Mountain UK site) as well as elsewhere in the world. There is no technical reason why the data must be close at hand, but EU clients want not only to have personal contact with their discovery suppliers but must be able to house their data within the EU for data protection and privacy reasons. Iron Mountain’s storage and data security infrastructure and experience will be comforting factors. The Iron Mountain press release sets out the business proposition for potential clients. Read the rest of this entry »


The Continuing Challenges of Preservation, Collection and Exchange

November 17, 2009

The first session at the Thomson Reuters e-Disclosure Conference in London last week was called The Continuing Challenges of Preservation, Collection and Exchange. George Socha’s panel included a solicitor, a software provider and a judge – Matthew Davis of Lovells, Stephen Whetstone of Stratify and HHJ Simon Brown QC.

Judge Brown said that the court is interested in the material, and only the material, needed for a decision. The point at issue in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009), on which he recently gave judgment, was not a difficult one. The judge is the end user of the disclosure process and needs contemporaneous documents. He had been given many documents which were not relevant to the issues which he had to decide, but not the ones which actually mattered. Witness statements drawn up by lawyers are often not worth the paper they are written on relative to the contemporaneous documents, in this case the records of telephone conversations. Read the rest of this entry »


Business mixed with pleasure at the Thomson Reuters London e-Disclosure conference

November 17, 2009

The Thomson Reuters Fifth eDisclosure Forum was sponsored by Autonomy, Stratify and Legastat and, as before, the co-chairs were Browning Marean, George Socha and me. I enjoyed it and, unless they were just being polite, the audience seemed to think it a valuable day. The session reports will follow; this summary gives you the flavour of the day and suggests how to follow it up.

Asked why we had left the key subject of search until the last session, I said that we were sufficiently confident of keeping most of the audience until the end that we wanted to go out on a high. So it proved, even on a wet and windy Friday the 13th several miles east of the back end of beyond at Canary Wharf. This is the one conference which the co-chairs get to design from the beginning, and I do not recall that we paid much attention to the sequence. All the topics were significant. Read the rest of this entry »


Master Whitaker addresses London Solicitors Litigation Association on e-Disclosure

November 12, 2009

I went to listen to Senior Master Whitaker speak last night to the London Solicitors Litigation Association about electronic disclosure. I was not expecting to hear much that was new to me – I have heard him speak five times in four countries in three continents in the last six weeks, so the anticipation of novelty was not why I flogged up to London. I go to anything I hear about where lawyers assemble with an interest in electronic disclosure.

It has to be said that, for a group which self-selected on this basis, the level of basic knowledge was not high. Although most claimed to know the difference between the pre-1999 Peruvian Guano test of “relevance” and the CPR definition of a disclosable document (one which is supportive of or adverse to the case of the giver or any other party), few knew of the co-operation and discussion requirements in section 2A of the Practice Direction to Part 31 CPR. Fewer had heard of Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch) (23 October 2008)
or last month’s judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) or knew of Lord Justice Jacobs’ thoughtful encapsulation of the problems in Nichia Corp v Argos Ltd [2007] EWCA Civ 741 (19 July 2007). Read the rest of this entry »


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

November 6, 2009

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”. Read the rest of this entry »


Earles v Barclays Bank reported in the Times

October 27, 2009

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. Read the rest of this entry »


Spitting on the deck of the CPR

October 27, 2009

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. Read the rest of this entry »


Costs penalty for non-compliance with e-disclosure obligations

October 9, 2009

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. Read the rest of this entry »


Reaching informed agreement that e-disclosure is not needed

September 21, 2009

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. Read the rest of this entry »


How would Bray & Gillespie play in the UK?

September 20, 2009

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. Read the rest of this entry »


Fifth Annual eDisclosure Forum in London for only £99

September 11, 2009

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. Read the rest of this entry »


I disclose the discovery that Britain is on its own

September 7, 2009

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). Read the rest of this entry »


Judicial College gives hope of e-disclosure training

September 1, 2009

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). Read the rest of this entry »


Judge Facciola on US and UK judicial discovery education

August 14, 2009

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. Read the rest of this entry »


Jackson Litigation Costs Review consultation ends

August 2, 2009

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. Read the rest of this entry »


Well-justified anonymity of Jackson commentator

July 31, 2009

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. Read the rest of this entry »


Woolf v Genn: the decline of civil justice

July 30, 2009

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: Read the rest of this entry »


Getting away from it all

July 23, 2009

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. Read the rest of this entry »


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