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).

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.

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.

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.

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.

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?

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.

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.

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.

E-Disclosure conferences give plenty to think about

Those who expect a daily addition to this collection of notes and essays (and I know there are a few such) may have wondered if I have run out of things to say from the paucity of posts recently.

Far from it, but I have been preparing for or attending three conferences this week, each of which has generated more than enough potential copy without leaving time to write it. What follows is a taster which I will follow over the next few days with more detailed reports.

At the Lawyer conference E-Disclosure – Beyond the Rules, I spoke with HHJ Simon Brown QC on the Commercial Court Recommendations and what the courts expect from you. We picked out the parts and the principles which apply to disclosure, and emphasised that everything we talked about applied as much in other courts as in the Commercial Court in cases where the volumes of documents made it proportionate.

If I had known the cost was hundreds not thousands….

The reactions at an e-disclosure conference point up the value of getting an idea of the likely costs before deciding that electronic disclosure is not for you. You cannot assess proportionality without doing so, and may be surprised by the answer.

On my first slide at an all-day seminar for CLT Conferences this week, I had a quotation from the Commercial Court Recommendations.

“Automatic disclosure will not take place until after the CMC, which decides on the scope of disclosure” [Para 68a]

One of the delegates immediately asked “Is this just about the Commercial Court then?”, putting his finger straight onto the central difficulty in trying to raise understanding about electronic disclosure, even with an audience which self-selected as wanting to know about the subject.

No, it is most certainly not just about the Commercial Court, nor only about big litigation between big, technically-skilled firms. Indeed, the implied assumption that “big” and “technically-skilled” go together highlights another point here – there are many big firms who have no idea about electronic disclosure, and plenty of smaller firms who do.

Access to justice goes wider than the environment

The UK’s treaty obligations to provide legal remedies which are “adequate … effective …fair, equitable, timely and not prohibitively expensive” in environmental cases applies in all cases and in all courts.

UKELA, the UK Environmental Law Association, recently published the report of a Working Party chaired by Mr Justice Sullivan called Ensuring access to environmental justice in England & Wales.

The report’s primary conclusion is that the UK is at risk of being in breach of Article 9(4) of the Aarhus Convention which requires EU member states to have judicial procedures which “provide adequate and effective remedies…and be fair, equitable, timely and not prohibitively expensive” in environmental matters.

The report is primarily concerned, and rightly, with those elements which are peculiar to this type of litigation – principally the existence of a public interest. Much of the report is concerned with costs – not so much their overall reduction, but specifically with Protective Costs Orders. The risk of being stuck with a large and unquantifiable order for costs in the event that the claim is unsuccessful is a powerful disincentive to exercise the rights which the Aarhus Convention is designed to protect. That, of course, must be balanced against the potentially enormous losses caused to developers and others when injunctions delay work.

The Working Party expressly avoided recommendations which would depend upon immediate changes to the Rules. There are two references in their Report, however, which are worth picking up on for their wider implications.

Rocket Dockets in Australian case management

We do not need an express “rocket docket” jurisdiction for everyone to agree that some or all of the case stages may be speeded up or dispensed with. It is, however, worth seeing what is happening in Australia.

Seamus Byrne of eDiscovery Tools in Australia (and now in London as well) responds quickly to my reference to “rocket docket” cases in the US (see Whose discovery rules would you rather break?) by pointing out that a rocket docket pilot is in hand in the Federal Court of Australia.

More formally called the Fast Track List , the pilot takes as its guiding premise that Cases cannot be made less complex, but judges can control the conduct of a case to a much greater extent thereby ensuring efficiency. Discovery has become most burdensome [and in] many cases it the single largest cost incurred in the preparation of the case. Many practitioners in the UK will applaud the conclusion that the practice … of requiring parties’ evidence to be tendered in the form of witness statements has significantly added to the costs.

Summation of e-disclosure responsibilities

Wolters Kluwer, owners of CT Summation, invited me to speak on 20 May as part of their series of thought-leadership talks. The subject was e-Disclosure costs and responsibilities: a primer for in-house and external counsel. I had adopted the theme of responsibility as my central prediction for the year (see Predicting litigation responsibility for 2008), and I spoke briefly about it at ILTA Insight 2008. I was glad of the opportunity to expand on the theme.

It works, Judge, trust us

US Magistrate Judge the Honorable Andrew Peck here makes his third appearance in this blog in as many days, following his appearances at the IQPC Information Retention and E-Disclosure Management conference last week.

There is a note about his reputation as one who moves cases along at a blinding pace in my post Guidance on benefits of e-Disclosure and there is a report of his attitude to pleas about EU privacy laws in Whose discovery rules would you rather break?. He also had some useful observations about the conduct of discovery in US courts which, although different in so many ways from our own (right down to having apparently different meanings of the word “proportionality”), nevertheless have enough in common for judicial commentary to travel well – in both directions.

Guidance on benefits of e-Disclosure Project

If it was slightly embarrassing to find myself the principal subject-matter of a speaker session at the IQPC Information Retention and E-Disclosure Management Conference last week, it is even more so to have the task of writing about it afterwards. But in giving over his speaker slot to a description of my e-Disclosure Information Project, Patrick Burke of Guidance Software neatly encapsulated the reasons why it is needed and why it deserves support, and it is perhaps easier to report what he said than to say it for myself.

It is also an opportunity to show that what is discussed at heavy-weight international conferences of e-Disclosure has a close bearing on what happens in UK courts and on what affects everyday litigation here.

First Law Society seminar on e-Disclosure

On Tuesday I gave the first in a series of ten regional talks on e-disclosure for the Law Society to an audience of 70 or so solicitors in London.

My starting point was the CPR requirements and powers – what they are and how the courts are using them. In that context, I stressed two things – that none of the powers are new and that, whilst the Commercial Court may be the formal test-bed for more rigourous practices, the rules apply everywhere. There are new pending developments – the proposed Technology Questionnaire and the formalisation of (inter alia) the disclosure obligations in a standard draft directions order – but the defence “these rules are very new and there is no case law” is not going to find a sympathetic hearing at Case Management Conferences, not least because the relevant rules have been in place since 2005.

E-disclosure conferences and seminars 2008

I have updated on my web site the list of conferences, seminars and similar events known to me for 2008, with hyperlinks to the programmes where they are available.

I have left up the programmes for the past events, since between them they give a good idea of what people are interested in and what are thought to be the key topics for this year. I say that because conference organisers have a good eye for what is topical, and those which I am involved with (which is most of them) have done an impressive amount of research.

Summation thought-leadership

As I have already mentioned, Summation is back in the UK and aiming for a share of the growing market here.

Since I don’t actually sell software solutions, my interest in “the market” is driven by the underlying causes of market growth rather than by the turnover for its own sake. The business success of the various players is an objective measure of the progress which is being made towards encouraging lawyers and their clients to handle electronic documents electronically – a progress which is the objective function of the e-Disclosure Information Project.

Wolters Kluwer, who now own CT Summation, are organising a series of Thought Leadership seminars and have one coming up on 20 May called E-Disclosure Primer for In-House and External Counsel. It is being led by Nigel Murray of Trilantic and by me. The chosen topic is the increasingly significant one of responsibility – responsibility, that is, to clients, courts and shareholders.

The Litigation Support Marketplace

Independent consultant Andrew Haslam of AllVision has published an excellent summary of what the litigation support market holds. Called The Litigation Support Marketplace – an Analytical Framework, it surveys the problems and the solutions which exist to solve them.

You get the flavour it from its conclusion:

Judge has more than one interest in trees

A letter in yesterday’s Times throws a new light on the interest which His Honour Judge Simon Brown QC has in electronic disclosure. As regular readers know, Judge Brown is an enthusiastic proponent of cutting down litigation costs by tight management of disclosure. His letter, “Planes to refresh the city’s masses” was prompted by a recent Times article about cutting down trees – or rather, about not cutting them down because of the value attributable to them under the new Cavat scheme.

XBundle lifts bar to electronic court bundles

It has been observed unkindly that a high proportion of my research seems to be done in bars. I find them good places to pick up information, especially if everyone else drinks and I do not. Perhaps it is less to do with drink and more with not being in an office – today’s assignation with a software company is in a patisserie, for example. It was at a bar, a while back now, that I met Robert Onslow, who stuck in the mind as the only software developer I know who is at the other kind of bar.

Robert combines a busy practice as a barrister specialising in IP and computer–related cases with the development of a software application called XBundle. He and fellow-director Andrew Steven had come up with an idea for replicating electronically the paper bundles which Robert used in court. The concept was simple. The only target was to achieve an efficient electronic substitute for the paper bundles. Anything which went further than that was ruled out.

Gremlins delay warning of EDD trolls

Giving your predictions for the year at the end of April is a bit like going to the bookies as the Grand National field crosses the Melling Road for the second time (not that that would have done you much good this year). Looking more closely, I see that the edition of Legal Technology Insider which hit my In Box this morning is that from January, and I can see from the header that it was indeed sent on 23 January.

That would pose an interesting conundrum for a lawyer examining the metadata in his opponent’s electronic disclosure, especially as I got the January message in January as well. I suspect that a Gremlin has intervened as an ISP somewhere along the line restored an old backup.

Nevertheless, as I read it with a growing sense of déju vu, I came across an article I missed on my first reading. It was by Simon Price of Recommind and was headed Dinosaurs and trolls in 2008. I am seeing Simon Price on Thursday, so I thought I ought to read it.

Standard Mercantile Court Directions

The old cliches are the best of course, and I feel just now that we have reached the summit after pushing snow uphill for years (15 years in my case). The snowball is poised to roll downhill, gathering momentum and bulk as it goes.

His Honour Judge Simon Brown QC, a Designated Mercantile Judge at the Birmingham Civil Justice Centre, has today released a standard form of directions for use in all Mercantile Courts. It will be sent out electronically to all parties once the defence has been filed. As well as compelling a focus on issues, it includes a direction which implicitly reminds parties of their obligations under Paragraph 2A.2 of the Practice Direction to Part 31- the obligation to discuss any issues arising from searches for electronic documents. That, of course, should already have been done before the first CMC.

Law Society regional e-Disclosure training

The Law Society has just published the programme and venue listings for its electronic disclosure training series under the title E-disclosure – the rules, the practice and the benefits. This begins in London on 13 May and goes to Birmingham, Manchester, Cambridge, Nottingham, Southampton, Bristol, Cardiff, Newcastle and ends in Leeds on 9 July.

This is of significance to me for three reasons – one, it shows the Law Society’s commitment to a subject which can no longer be ignored by solicitors who practice litigation in any court in the UK; two, it is the first serious attempt to carry the message out to those who cannot easily attend the e-disclosure conferences in London; and three, I am the one giving the talks.

ILTA INSIGHT 2008

ILTA INSIGHT 2008 takes place on 15 April at the Hilton London Tower Bridge. I will be speaking there with Mark Surguy of Pinsent Masons and HHJ Simon Brown QC in a session to report on the progress which has been made on the management of electronic disclosure since the three of us met last year.

We have run a training session for 14 judges in Birmingham, addressed two packed meetings of local practitioners there organised by the Law Society and made, or been booked to make, a number of speeches, podcasts, and webinars on this subject. In addition, I write about every possible aspect of the subject and take every opportunity to connect with anyone interested in the subject.

LDM shows CaseMap integration

Regular readers will know that I am an enthusiast for CaseMap as a low-cost tool both for its primary purpose – the linking of litigation facts to issues – and as a simple way to handle disclosure. If today’s postings seem CaseMap heavy, that is because there were two CaseMap events last week.

The first was a visit to show it to HHJ Simon Brown QC at the Birmingham Civil Justice Centre, which I describe in a separate post (Judge how CaseMap gets to the issues). The second was a meeting of the CaseMap user group in London on Friday. The speakers were Bob Wiss, co-founder of CaseSoft, Christine Tomas of LDM and Dr Tony Cox, who gives expert evidence on health and safety matters, mainly to do with mechanical engineering.

Judge how CaseMap gets to the issues

I went to Birmingham last week with LexisNexis to show a judge what CaseMap can do. Why is it important for judges to see solutions like this, and what is CaseMap’s role in handling the issues in litigation?

Part of the aim of the E-Disclosure Information Project, of which this blog is a part, is to introduce to each other as many as possible of the people, things and concepts which have some role in the disclosure aspects of case management.

Some of these matchings are more obvious than others. I work with lawyers to look at how the CPR can work for them. I introduce people who have a problem to solve to providers who might have the answer. I pick up ideas from one discussion, one web site or one jurisdiction, and drop them into another. This much is a fairly obvious use of resources, information, contacts and knowledge, and seems to be appreciated.

Less obvious is the introduction of technology solutions to judges. Judges can neither buy nor recommend solutions, so it might seem on the face of it a waste of time on everyone’s part for suppliers and judges to spend time together. I disagree.

See the Rule Committee in action

The Civil Procedure Rule Committee is having an open meeting on 13 June 2008. I wrote about last year’s one (Rule Committee Open Meeting) in a manner simultaneously respectful and tongue-in-cheek – respectful in that the Rule Committee does an important and under-regarded job well, tongue-in-cheek because I wanted you to read it without nodding off.

I will not repeat what I said last year about the Rule Committee’s statutory terms of reference, but it is worth saying again that it is no small matter to devise a rule which potentially has application (subject to value limits) across all courts and in all circumstances. Those who criticised the Commercial Court Long Trials Recommendations on the grounds that they were not a rewrite of the CPR seem to have overlooked the virtue of devising practice and procedures within the existing rules.

Directions initiative in Birmingham

Practitioners in the Birmingham Mercantile Court are being sent a draft order for directions which includes provisions aimed at tighter case management. Why is this useful, and what if you genuinely think that the proposed order should not apply in your case?

I reported (Commercial judges spell out case management intentions ) that the prime movers behind the Commercial Court Recommendations had emphasised that their procedures for streamlining case management were applicable, where proportionate, in any court. This follows from the fact that the procedures – now having a trial period from February to November – involved no amendments to the Rules, and all fit within the court’s management and discretionary powers.

Another e-Disclosure event in Birmingham

A second talk to Law Society members in Birmingham revealed more enthusiasm for electronic disclosure than one might expect given the amount actually done. How do we translate that enthusiasm into action? The only action required is to ask a supplier or two for quotations to inform your decision-making

It was back to Birmingham last night for the second round of talks about e-Disclosure given by me and His Honour Judge Simon Brown QC. As before, the event was organised by the Law Society’s indefatigable West Midlands Regional Manager, Clive Black, and hosted by Pinsent Masons, whose Mark Surguy originally introduced me to Birmingham.

We had an audience of more than 30, which means that over 90 people in all have turned out for these events. They came mainly from local firms of all sizes, with some in-house lawyers amongst them.

These talks are introductory in nature, and distinct from the harder-edged practical-cum-legal training sessions which I am about to embark on around the country for the Law Society. I opened with a summary of what we were trying to achieve – the spread of information about the rules, the available technology, and the way in which the courts are taking a firmer grip on management of cases.

E-Disclosure conferences in London 2008

There are several e-Disclosure conferences in London this year, including a couple which have not been seen in this space for a bit. Conference organisers have a keen eye for what is topical and have obviously decided that 2008 is the year in which people will want to know about e-Disclosure.

So they should: the Commercial Court Recommendations and the new spirit of judicial proactivity in case management are not the only factors which will make it necessary to be on top of this subject.

Discovering what to do about e-disclosure

The paucity of blog postings recently does not imply that there is nothing to write about On the contrary, there is too much going on to stop and write it all up. A quick summary of what has come up in the last couple of weeks gives you some idea of what the E-Disclosure Information Project does.

First, a recap on what it is for.

The broad idea is to promote understanding of e-disclosure by acting as a link between all those who have an interest in e-Disclosure – corporations, practitioners, suppliers and the courts. The expression “to have an interest” does not necessarily imply actual overt expressions of interest, nor even a recognition that the subject is of relevance.

UK judge flies e-Disclosure flag in New York

His Honour Judge Simon Brown QC of the Birmingham Mercantile Court went to New York last week to take part in a judicial panel on the subject of eDisclosure. The resulting debate should make audiences sit up on both sides of the Atlantic.

We are well used to US judges coming to London to tell us how discovery of documents is managed in US courts. We hear from them what works and what does not work, what problems they encounter, and what methods they are evolving to deal with them.

You might think it rather odd that we have to import foreign judicial talent to tell us about a concept we invented, but I have heard more US judges speak here on the subject than English ones. This year I have been involved in the planning of a few e-Disclosure conferences. The draft programmes usually contain a hopeful slot marked “Judges Panel”. A somewhat paradoxical reason given for the absence of judges willing to speak is that they see too much emphasis in the UK conference programmes on the 2006 Amendments to the US Federal Rules of Civil Procedure.

Let’s just recap on that: the only judges willing to speak on e-Disclosure are American ones who necessarily speak about the FRCP. English judges don’t come and speak because there is too much about the FRCP. The expression vicious circle comes to mind.

An effective remedy for prolixity

I reported earlier today (Commercial Court judges set out their case management intentions) on the Commercial Court judges’ intention to limit the length of pleadings, witness statements etc as part of their firm commitment to cut the crap (they did not, I should add, put it like that, not in express terms anyway).

I owe to Mark Dingle at Simmons & Simmons a pointer to a case which is right on the point. It is not exactly current, dating as it does from 1595, and it involves a defendant called Weldon. It would not surprise anyone who practices in this area to find that Derby v Weldon had been running that long, but this case began even longer ago than that long-running saga, and the plaintiff was one Mylward. It may have been a different Weldon.

Commercial Court judges set out their case management intentions

A well-attended meeting of the Commercial Litigators’ Association on Monday was left in no doubt that the Commercial Court judges intend to follow closely the recommendations of the Commercial Court Long Trial Working Party

Allen & Overy were the hosts on 25 February when Mr Justice Richard Aikens, Mrs Justice Gloster and Mr Justice Andrew Smith led a panel session to talk about the practical effect of the Commercial Court Recommendations, which took effect on 1 February, and to invite questions and feedback on them.

Sir Richard Aikens was the chairman of the Working Party. Dame Elizabeth Gloster DBE was both a member of the Working Party and, it became clear, the prime author of the checklist which converts the Recommendations into a step-by-step guide. Sir Andrew Smith is the Judge in Charge of the Commercial Court. If we needed a sign that this is being taken seriously, the fielding of this team was it.

Guidance on the Human Factor in eDiscovery

My first port of call in New York last week was Patrick Burke, Assistant General Counsel at Guidance Software. I did a webinar with Patrick over Christmas (Americans don’t really do Christmas I discover – the last e-mail in on Christmas Eve came from Patrick, as did the first one of Boxing Day) and it was good to meet him at last after the hours of discussion we had about that.

I first came across Guidance Software at the IQPC conference in London last May, when Victor Limongelli (now CEO of the company) gave a talk which impressed because of his sure grasp of the UK court rules. Regular readers will know that I focus closely on the matching roles of rules and technology as weapons to keep the costs down, and it is rare to find any supplier, still less a US one, who articulates that viewpoint.

Basketball pointers for litigation management

eDiscovery Tools is an Australian company which makes software for processing e-mail and other electronic documents for litigation and similar purposes. Its main product is eDiscovery Processor, used by law firms, corporate clients, government departments and litigation support bureaux to extract and index full text and metadata from hundreds of file types and to export the results into a format ready for the majority of litigation support platforms, including FTI Ringtail, Concordance and CT Summation.

It caught my eye at LegalTech last year, and stuck in my mind partly for its obvious power, flexibility and user interface, but mainly because of the demonstrator’s reaction when I asked about an audit feature – an obscure point to do with removed attachments. The chap stared into the distance for a moment and said no, that was not covered – but if I were to ask the same question in a month’s time, I would find that it was.

Trilantic sessions round off LegalTech

As in previous years, Trilantic organised three sessions for the last day of LegalTech. They are generally less formal than the other sessions and, as I have said elsewhere, take important subjects with a light tone.

I thought I would summarise what was said, but cannot in fact do so because I got an e-mail a few minutes into the first one, offering an opportunity to see someone whom I very much wanted to meet. My account of the sessions will necessarily be light on content.

The first one was called International eDiscovery Rules, Standards and Challenges. The Moderator was George Socha and the panelists were Browning Marean of DLA Piper, Laura Kibbe of Pfizer, Vince Neicho of Allen & Overy and Michelle Mahoney of Mallesons Stephen Jaques.

Long Trials trial gets longer trial

Mr Justice Andrew Smith, Judge in Charge of the Commercial Court, has issued a statement about the Report of the Commercial Court Long Trials Recommendations.

The Recommendations will be put into practice from 1 February. The trial period, however, will run until the end of November 2008, and not just to July as was originally envisaged.

The Statement makes it clear that practitioners will be expected to be familiar with the recommendations and to conduct litigation accordingly. Where relevant, cases which have already had a Case Management Conference will be reviewed to see if further case management orders would be appropriate.

Mr Justice Andrew Smith makes the point that, despite its title, the Report does not relate only to long or complex cases. He envisages that its provisions will apply to most cases in the Commercial Court. Some of the ideas might, indeed, be used elsewhere – the Disclosure Schedule, for example, is a useful aid to identifying areas of agreement or otherwise as to disclosure sources in any case where there are many documents.

In addition to the Report itself, there is a related press release and some articles on this site which relate or refer to the Commercial Court Recommendations.

The impact of Qualcomm for UK lawyers

The sanctions judgment in Qualcomm v Broadcomm emphasises for UK lawyers the apparent conflict between their duty to ensure that their clients give full disclosure and their parallel obligation to keep disclosure proportionate. The two duties are not in fact irreconcilable, but it can be hard to see that and harder to achieve it. This article looks at what the judgment actually covered.

My article Predicting Litigation Responsibility for 2008 was written overnight on January 7. Allowing for the 8 hour time difference between Oxford and San Diego, it was written at about the time that Magistrate Judge Barbara Major was delivering the judgment in which she sanctioned Qualcomm Inc. to the tune of $8,568,633.24, and reported several of Qualcomm’s lawyers to the California State Bar. Although it is the sanctions which caught the eye, what the judge said about the responsibility of individuals is perhaps more important.

Spotting the turning-point at the starting-point

The main character in the film The Butterfly Effect explores every possible event in his search for the right answer, only identifying the correct turning point at the end of the last reel, after much unnecessary tribulation. The aim of close court management of litigation is to find the turning point much earlier.

In his speech to an e-disclosure conference last week, His Honour Judge Simon Brown QC emphasised that the judge’s role is to find the facts. His context was the selection of the documents which proved the facts, and the desirability of identifying the key issues – and thence the key documents – as early as possible so as to reach the right conclusion with the minimum of time and expense.

Looking in retrospect, even the most partisan of parties can usually see how a court reached the factual conclusion that it did reach. I don’t mean they necessarily agree with the weight given to any one fact, still less that they accept the judge’s application of the law to those facts, but by the time the witnesses have performed (or not) and the spotlight has focused on a handful of documents to the exclusion of the rest, a set of key facts – or perhaps just one – is seen as the turning point.

And everybody, but particularly the loser, wishes that the significance of that fact, now so obviously the turning point, had been seen as such very much earlier. Everybody could have been saved a great deal of time, trouble and expense if they had spotted earlier what they now see as the nub of the thing.

E-Disclosure – What does the court expect?

His Honour Judge Simon Brown QC told a London conference audience what the UK courts expect from those who appear before them when electronic disclosure is a big element in a case.

I have written separately about the conference organised by Marcus Evans in London on 14-15 January 2008. His Honour Judge Simon Brown and I were speakers on the second day with a session billed as The Mutual Expectations of Clients, Lawyers and the Courts.

The first day included two sessions which prepared the ground which we had proposed to cover, not least a very interesting Panel session on reducing the costs in which Judge Brown took part and which had ranged widely. That allowed us to take a less structured approach than had been planned.

Debating the Aikens Report

I wrote on Friday (Give more credit to the Aikens Recommendations) with a more positive view of the Long Trial Report and Recommendations than had been given by John Reynolds of White & Case (Aikens misses the big picture) in Legal Week.

Now Mr Justice Aikens, the Chairman of the Working Party, has weighed in with a restrained comment to the effect that the Recommendations do in fact have the emphasis on rigorous case management and the acceptance of the need for a culture change and for more judicial resources which Mr Reynolds sees as necessary.

Give more credit to the Aikens Recommendations

John Reynolds, a partner in White & Case, shows less than enthusiasm for the Commercial Court Long Trials Report and Recommendations in an article published yesterday on Legal Week’s web site. The Recommendations deserve more credit.

The article, headed Aikens misses the big picture, is a difficult one to rebut in that, whilst the overriding impression is one of disappointment, it is hard to see what Mr Reynolds would have had the Working Party come up with in its place. The committee, he says “was never going to produce a shiny new rule book”, yet he says also that “revision of the CPR is overdue”. He criticises the Recommendations as being “light on case management” but acknowledges that “the judiciary needs to be far more rigorous in the using the case management powers the rules contain…the deployment of [which] cannot be legislated for in the CPR” and adds that ”we must use this opportunity to overhaul the CPR and the way it is applied”.

So what are you saying here, John? Do we need new rules or just better use of the ones we have? Do the rules need an overhaul or not – if the problem is the better use of the existing management powers, and if they “cannot be legislated for in the CPR”, then what needs revision?

Commercial Court Long Trial Recommendations

The Report and Recommendations of the Commercial Court Long Trials Working Party was published on 6 December 2007. Its 83 pages deserve a closer look than time allows now, but we will have a quick summary of the passages relating to disclosure.

Its immediate context is long and complex trials and the management and preparation for them. The Commercial Court has long been the place where new ideas take root and the Commercial Court Guide has supplements to the CPR which, for the most part, can be used in any court where appropriate within the court’s discretion. The recommendations therefore have implications beyond the Commercial Court itself, and beyond the trial period which is to run from 1 February to 31 July 2008.