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

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

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

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

Time spent telling judges about their use of social media could be better spent on eDisclosure

Recent guidance from the UK’s Senior Presiding Judge and the Senior President of Tribunals fired a warning shot over the bows of judges who blog, a term which they helpfully define as being “derived from the term ‘web log’”. The inclusion of the definition somehow reminds me of all those relatively elderly lawyers who still refer to data as being provided “on CD”, as if that reference from circa 2005 were another way of saying “electronically”. Both examples come across as rather strained attempts to be seen to be down wit da kidz.

My own reaction was a rather sarcastic tweet:

We should perhaps be pleased to discover that the senior judges know what a “blog” is. Next year “Twitter”, and “Facebook” by 2014

Lengthier and more serious comment followed from English commentators such as Adam Wagner and ObiterJ.  Reaction from the US illustrated as much as anything the sheer diversity of the US judiciary, ranging from stories of idiots who should plainly never have been given judicial office through to serious discussion about both ethical restrictions and the judicial duty to “initiate and participate in activities for the purpose of promoting public understanding of and confidence in the administration of justice”.

The thoughtful IT-cross-legal commentator The IT Countrey Justice has now provided us with a very readable comparative study of judicial attitudes to public comment by judges across a range of jurisdictions with the title Social Media and the Judiciary.

So far as I am concerned, the UK judicial advice, if it was necessary at all, got its emphasis wrong. It could have achieved the same effect by promoting the benefits of judicial comment with a warning rider about the risks. That would have served the same purpose without attracting any adverse comment.

If the establishment has time to write guff like this, and the judges have time to read it, perhaps they could focus instead on the need for judges to understand electronic disclosure and the role which judges should be playing in keeping it under control.

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Jackson – Solicitors must be ready for electronic working

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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UK and US EDisclosure / EDiscovery and Compliance Commonality at IQPC London

There was something for everyone at the IQPC Document Retention and EDisclosure Management Summit in London this week. The Bribery Act gave added incentive for those responsible for information management within organisations; at the other end of the process, prosecutors and judges from the US and the UK emphasised that the target is not merely formal compliance with court rules but business objectives and business efficacy; in between, the technology begins to appear – at last – as a tool to support the business and procedural requirements and not, as it used to, as a free-standing objective of its own.

We have also finally eradicated the impression that US judges, providers and practitioners are missionaries come to civilise a backward race. We are all in this together, thanks to four specific facets of globalisation: the need to collect data worldwide and the privacy conflicts which that brings; the fact that the dominating new technology for creation and dissemination of data (of which Twitter and Facebook are but two examples) goes global immediately; the convergence of thinking on court-led procedural matters such as co-operation and proportionality; and now the Bribery Act, matching and exceeding the reach and the implications of the US Foreign Corrupt Practices Act. One US visitor said that she had gone away from a previous conference wondering why she had crossed the Atlantic simply to hear other Americans speak; there are still plenty of them here, but their contribution now brings a world view, not merely a US one, to what has become a much more collegiate group of experts.

As always, I went to relatively few sessions beyond the six in which I took part because I use these events as an opportunity to talk to as many people as possible. I mention this not merely to justify my failure to report comprehensively on the whole conference but to emphasise a hidden value in these events, and an overlooked justification for time taken out of the office. Unclear about some particular technology and whether it its use is likely to be acceptable in a court? Talk to a few people who provide it and then to a judge. Not sure whether your company is ahead or behind others in compliance matters? Have a chat with people who hold parallel roles in other companies. There is much more to these events than one-way communication from the platforms.

Lord Justice Jackson fights for his costs reforms

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

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

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

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

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

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

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Planting eDiscovery ideas inch by inch and step by step

Every article could cover one more topic, bring in another side-reference, or round out the discussion with another example, parallel or exception.  Sometimes it is best to stick to one core subject.

The continent of Europe is so wide,
 Mein Herr.
Not only up and down, but side to side,
 Mein Herr.
I couldn’t ever cross it if I tried, 
Mein Herr.
So I do..
.
What I can…
Inch by inch..
.
Step by step…
Mile by mile…
Man by man.

I am not sure that Cabaret’s Sally Bowles would make a great role model, but her meticulous approach to getting her arms round something, as described in the song Mein Herr, is spot-on. Take one subject, get everything you can out of it, and move on to the next. it is much easier if you stick to one at a time. With experience, you can perhaps take on more than…. well perhaps I have exhausted the analogy already. I only really wanted the “inch by inch, step by step” bit for my immediate purpose.

My December 23 post Judges and automated coding tools for electronic discovery drew an immediate comment from Joe Howie of Howie Consulting and the e-Discovery Institute. Joe is co-author, with Anne Kershaw of A. Kershaw, P.C. Attorneys & Consultants, of the recent Judges’ Guide to Cost-Effective E-Discovery which, in 25 brisk pages, gives judges an introduction to a subject which many of them find difficult – see its contents page for an idea of what is covered. Deciding what the strict obligations are in relation to electronic discovery generally is hard enough; it is those words “cost-effective” which make it particularly difficult. Any fool of a lawyer can give discovery of everything which might possibly be relevant, and any fool of a judge might let them have it. Similarly, it is easy enough to challenge the other side’s discovery, leaving the judge to decide whether the demands represent an unwarranted tactical pressure or a legitimate demand for evidence – or, indeed, ignorance on the part of both parties. Assessment as to what is easy, what is difficult and what is reasonably practicable at a reasonable cost is required of the judge, and this book aims to help judges in this respect. I was at its launch party in Georgetown in November and the critical reception (in that most critical of audiences) was uniformly positive.

Judges and automated coding tools for electronic discovery

I took part this week in a podcast called Will Judges Think It Is Okay To Use Clustering and Suggestive Coding Tools? which was led by Karl Schieneman of ESI Bytes. I was the token Englishman alongside US top-drawer participants Judge Grimm, Judge Facciola, and Maura Grossman of Wachtell, Lipton, Rosen & Katz, who is also Topic Authority in the Legal Track of the Text REtrieval Conference (TREC).

As its title implies, the podcast concerned the acceptability of technology like clustering and what is variously called “suggestive coding” or “predictive coding”. Karl used the term “suggestive coding” so I will stick with that. These technologies aim to reduce the volumes which must be subjected to this most expensive (and most inaccurate) method of making document decisions. The starting point, for a lawyer or a judge, is the need for competent, ethical, co-operative and proportionate discovery, and a recognition of the role which technology must play in this. It is technical stuff, as Judge Grimm observed at the outset of our podcast, referring approvingly to Judge Facciola’s observations in US v O’Keefe about what judges and lawyers may dare opine in the face of technological complexity and about angels fearing to tread. The volumes, the technology and the expected standards have all increased substantially since then.

You can listen to the podcast yourself, so I will not do more than list some key points which came out:

6th Annual eDisclosure Forum on 15 November

I am co-chairman, with Browning Marean and George Socha, of the Thomson Reuters / Sweet & Maxwell Sixth Annual eDisclosure Forum on 15 November at Canary Wharf in London.

Speakers include Senior Master Whitaker, HHJ Simon Brown QC, Mark Surguy of Pinsent Masons, Vince Neicho of Allen & Overy, Laura Kibbe and Deborah Blaxell of Epiq Systems, Ted O’Neil of EMC Kazeon, Bill Onwusah and Matt Davis of Hogan Lovells, Anne Marie Gibbs of Daegis, Jeremy Marshall of Irwin Mitchell and Simon Clark of Pfizer.

This is a UK-focused conference despite having two US co-chairmen. The new UK Practice Direction and Electronic Documents Questionnaire, recent cases, new technology and costs management are all to be covered. The conference sponsors will be on hand to answer questions about the technology solutions which they bring to the problems of electronic disclosure.

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

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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Far and wide eDiscovery at the Chilli IQ conference in Sydney

Sometimes an unconscious theme develops during conferences. Appropriately, perhaps, given the “IQ” element in the organiser’s name, the point which recurred in Sydney was the use of human intelligence in parallel with the processing power and clever technology to get as early as possible to the things which matter. That phrase “as early as possible” came up a lot, not least because (as I noted when I commented on it – see Terms of Reference for Australian Discovery review),  the Australian Attorney General’s Terms of Reference for the pending Discovery Review uses those words three times in their few lines.

Beth Patterson of Allens Arthur Robinson observed, for example, that one might be able to count whole directories in or out by having someone with the appropriate skills and a bit of brain just look in them; if they are patently irrelevant, why include them in the future stages? Michelle Mahoney of Mallesons said that dependence on raw processing power alone meant taking the thinking out of discovery; computers are very good at many things, but they cannot think. Eddie Sheehy of Nuix, unsurprisingly as strong an advocate of intelligent computing power as you will find, recommended giving a couple of the team’s best brains a day or two towards the end of the exercise to try and pick holes in the result by going in any direction they thought fit, trying to find documents or categories which had been wrongly included or excluded. For the third conference running, Equivio (who were not involved at any of them) was praised for the way its products used the best of technology and intelligent human input.  And I used my stock phrase “the best technology lies between your ears”.

I quite like opening the batting at these conferences. The audience is awake, no-one can have stolen your thunder by covering your chosen ground, and a keynote speaker has licence to roam more widely than one with a defined topic.  I merged my session with that of Senior Master Whitaker – I gave a short introductory speech, and used the rest of the double session for an interview-style  discussion with Steven Whitaker about UK developments.  My topics in opening included the international community of interest in ediscovery; the relative importance of rules and processes on the one hand, and discretion, proportionality and the clients’ actual objectives on the other; and the changing relationship between clients, their lawyers and the technology suppliers, with the possibility that the lawyers will get marginalised in that relationship.  Steven Whitaker took us through the key points of the Jackson Report, the range of disclosure options in the draft Rule 31.5A, and the proposed Practice Direction and Questionnaire. We took the cases between us, Steven Whitaker covering the ones which turned on the law, and I taking those in which stupidity, ignorance and incompetence were the main factors (there is something about being in Australia which encourages plain speaking).

Comment on Singapore Deutsche AG judgment

Vince Neicho of Allen & Overy saw my post about the Singapore judgment of Senior Assistant Registrar Yeong Zee Kin in Deutsche Bank AG v Chang Tse Wen and others (see Singapore e-Discovery judgment shows international commonality and active management) and has input which is worth passing on. Vince says:

How refreshing that, shortly following the Senior Master’s judgment on Goodale, another judge, Yeong Zee Kin SAR in the High Court of Singapore, has grasped control in an e-disclosure dispute to instil some common sense into the process.

As per usual, Chris has reported the judgment admirably, pulling out the pertinent information for us.  I write this commentary for two reasons:- the first is to rejoice that a judge has corroborated two points that I have been banging on about for years and, second, to seek, with respect, to suggest from a practical angle, that there was an alternative course open to the Yeong Zee Kin, that would have rendered the disclosure more useful in the long run and have resulted in significant cost savings.

Liverpool EDisclosure event on 3 June

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.

IQPC the best London e-disclosure conference again

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.

IQPC: I heard your judges’ panel blew the doors off the joint

The quotation in my heading just came in from Gregory Bufithis of The Posse List. The reference is to the judicial panel yesterday at IQPC in London comprising (alphabetically) His Honour Judge Simon Brown QC, US Magistrate Judge John Facciola, Chief Magistrate Judge Paul Grimm, Lord Justice Jackson, Magistrate Judge Elizabeth LaPorte and Senior Master Whitaker. Patrick Burke of Guidance Software moderated and I opened the batting with a short introduction on the importance of international debate and discussion about electronic disclosure / discovery.

We got good feedback at the time, but if the word out there is that the panel “blew the doors off” then that is as good as an endorsement as we could want.

My own account of the event, including that panel, is proceeding slowly, not much aided by all the other things to be crammed into the two days which elapse between that conference and leaving for CEIC in Las Vegas on Saturday, nor by the eight hours I clocked up sitting (or standing) on panels, 4.5 of them yesterday. I stupidly forgot to pass my camera to anyone, so I have no photographs of that panel. Here in the interim is one from the Mock Disclosure Applications which we did at the end (thanks to Nick Pollard of Legal Inc for taking these for me).

The picture shows Judges LaPorte, Facciola and Grimm playing a composite judge called Fluffy, me as narrator, Steven Whitaker and Simon Brown as solicitors involved in e-disclosure applications, and Patrick Burke, in this scene as a salesman from The EDD Coalition explaining how two suppliers who hate each other have joined forces, looking and sounding the same in order to get more than 50% of the market – it works for politics, he is saying. Fluffy, the solicitors realise too late, is not a soft touch but a three-headed monster, as they would have realised if they had read Harry Potter and the Philosopher’s Stone.

That was the fun bit at the end of an intensive and extremely interesting three-day conference. My account will appear shortly, and others, I hope, will be covering the sessions (most of which, as usual, I either failed to record because I was in them or missed because I was engaged in useful conversation outside).

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Court of Appeal declines to overturn specific disclosure judgment in Fiddes v Channel 4

Those interested in judicial management of disclosure might like to look at the judgment of the Court of Appeal in Fiddes v Channel 4, delivered on 24 March but published on BAILII only on Friday.

The case is interesting for several reasons: it is an e-disclosure case; it is a libel case, thus showing that e-disclosure pops up everywhere; it involves the other Jackson, the late Michael; it considers questions of proportionality where the cost (in this case of examining backup tapes) is balanced against the likely value of what might be recovered. More important than all this, it shows a Court of Appeal upholding a judge’s decision although far from convinced that they would have arrived at the same conclusion as he did.

Imminent reform in prospect for Australian discovery process

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.

Listening to myself talking about e-Disclosure for the IQPC Information Retention and E-Disclosure Summit

I have been listening to a podcast which I made recently for IQPC as part of the run-up to their Information Retention & E-Disclosure Management Summit in London on 17-19 May 2010. It can be accessed from the Summit’s home page. It is not that I reckoned to learn anything new, you understand, nor is there any narcissistic pleasure in hearing the sound of my own voice, but it is no bad thing occasionally to know what the audience is hearing, as Gordon Brown discovered last week.

The recording covers recent cases, the proposed e-Disclosure practice direction and ESI Questionnaire, and the e-Disclosure elements in Lord Justice Jackson’s Report. It also considers the importance of learning about what happens in other jurisdictions, and the collision between the US and the EU on matters of privacy and data collection. It ends with the observation that this subject is one with opportunities as well as risks – there is work to be won by those who take the trouble to learn a little about e-Disclosure problems and the solutions. It ends with the exhortation that “‘Get on with it’ has to be the message of 2010″.

The recording is intended to provide a context for the Summit, in particular for the US-UK judicial panel.

ILTA Insight 2010: lawyers risk becoming just part of the clients’ process

The most powerful single message from ILTA INSIGHT 2010, held in London yesterday, was that lawyers risk becoming merely part of the clients’ processes in a slot marked “insert lawyer here”. Technology must become part of the lawyers’ business processes, and not merely an adjunct to them.

ILTA INSIGHT 2010 took place yesterday at the Grange Hotel St Paul’s Hotel. Peggy Wechsler and her team put on an interesting programme, as ever, at an event which always manages simultaneously to be friendly but challenging. ILTA’s scope is much wider than my own specialist subject, e-Disclosure, embracing every aspect of bringing technology to the business of being a lawyer and, in consequence, has a delegate contingent which is wider than I usually see. There is a greater emphasis on law-firms-as-businesses, which tends to be side-lined at pure e-Disclosure conferences. It deserves a place there – the internal decision-making about this aspect of the litigation process should be driven as much by the firm’s own costs as by those incurred by the clients.

The British election has so far not thrown up a single defining slogan, that killer combination of words which simultaneously captures the mood and skewers an opponent. Abby Ewen of Simmons & Simmons came up with one at an ILTA INSIGHT session led by Charles Christian of Legal Technology Insider and the Orange Rag blog. The context was the identification of things which lawyers are good at, as opposed to all those other things which they do as part of their traditional work for clients and to the (relatively novel) idea that they are running a business. Abby said that  “not much of what lawyers do is all that clever stuff they went to university to learn”. It was important, she said, to “try and extract the things which lawyers are not very good at”. The corollary to that is that the clients are only interested in those things which the lawyers are good at, so that they, and the charging rates which go with them, are applied only when necessary.

Free use of Equivio Early Case Assessment Software for up to one million documents

Equivio is offering to make its early case assessment application Equivio>Relevance available to a limited number of participants in what they call the Equivio>Relevance Challenge – see the press release and sign-up page for details.

Most lawyers can understand the basic concepts of keyword search, if only because they do it every day with Google. Because one can generally find something out of the mass with a Google search, it is tempting to assume that throwing a list of keywords at disclosure / discovery data will reduce the volumes of data to be reviewed – and so, of course, it will. Many lawyers will understand, or at least be aware of, the idea that a keyword search is flawed as an approach to identifying relevant documents, not least because “relevance” turns on many factors beyond the incidence of a particular word or words in a document – correspondence between fraudulent conspirators will contain neither “fraud” nor “conspiracy”, to take a trite example.

Nuix joins the e-Disclosure Information Project

I am delighted to welcome eDiscovery and electronic investigation software company Nuix as the latest sponsor of the e-Disclosure Information Project.

The connection began at the Ark Group eDiscovery conference in Sydney last year when I found myself sitting next to Nuix CEO Eddie Sheehy and had a drink with him and Browning Marean of DLA Piper US after the conference.  We met up again at LegalTech in New York a few weeks ago, when I went to see Nuix 3 with HHJ Simon Grenfell, Designated Civil Judge, Leeds and North Yorkshire. Nuix 3 is offered by London-based providers 7Safe (itself a sponsor of the e-Disclosure Information Project) and Millnet.

Next week, on 9 and 10 March, Eddie Sheehy is Chairman of the Ark Group Sydney conference and HHJ Simon Brown QC, Designated Civil Judge at the Birmingham Civil Justice Centre is on a judicial panel with The Honourable Justice Ian V Gzell, who was a speaker at the LexisNexis eDiscovery conference in Singapore which Browning Marean and I co-chaired last October and at which Senior Master Whitaker was also a speaker

E-Discovery and Judicial Involvement in Australia

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.

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

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.

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

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.

Jackson untroubled by delay to e-Disclosure Practice Direction

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

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.

One 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. 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.

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

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.

US-UK discovery differences on video at the Masters Conference

I have only just seen a set of short videos which His Honour Judge Simon Brown QC and I made at the Masters Conference last October in Washington. They were made by LegalQB and involved a proper studio with lighting and a backdrop.

I link to the clips with some diffidence, not because I am unhappy with their message, but because (like many people) I do not particularly like seeing myself on video. My default look is serious and this, coupled with a dark suit and dark tie (I can see why media performers take advice on things like this) makes me look like an up-market but rather disdainful funeral director. The downside of a commitment to take any reasonable platform going is that I cannot choose my media, and if someone asks me to do a video in five minutes’ time, I generally I do it.

The star guest was supposed to be Simon Brown who had, only the week before, delivered the judgment in Earles v Barclays Bank which was the only important e-Disclosure decision made in England & Wales in 2009. My role (so far as I was concerned) was merely to introduce the judge and to describe briefly the differences between the US and UK disclosure regimes.

Unfortunately, although my recollection is that Simon Brown said quite a lot about Earles, that has not made it through to the final cut. We have me as the warm-up act, right down to my turning to Simon Brown and inviting him to tell us about his judgment. Then we cut to something else.

That can’t be helped and I don’t blame the editors. Nor do I intend to start imposing editorial control – the whole point of video is that it is instant and life is too short to fine-tune everything. I might wear a brighter tie next time though.

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Georgetown Law: Rudoy on eDiscovery certification – reality or myth?

An article by George Rudoy on the Georgetown Law site, which includes some input from me, reawakens the debate about certification of those who work in eDiscovery. Education on this subject was a key recommendation of the recent UK Jackson Report and I am (as you might expect) an enthusiast for it. Why am I against certification?

One of the key topics of 2009 in the US eDiscovery world was the extent to which it is desirable, helpful or necessary to establish a scheme for certification of those engaged in litigation support and eDiscovery. George Rudoy, Director of Global Practice Technology & Information Services at Shearman & Sterling LLP, is well-known for his role in practical education, and has just published an article whose title eDiscovery certification — reality or myth? implies that the subject is not as straightforward as one might hope. Who would argue against education of those engaged in the high-value and risk-fraught business of electronic discovery, or electronic disclosure as it is in the UK?

First thoughts on the eDisclosure implications of the Jackson Report

The sections relating to disclosure and e-disclosure in the Jackson Report are a call to action for lawyers and judges without waiting for any actual amendment to the Rules. The key element which Jackson identifies is education, and we can get on with that tomorrow.

The 558 pages of Lord Justice Jackson’s Final Report on Litigation Costs have hit my screen with a thump. My focus inevitably is on the sections relating to disclosure and e-disclosure between pages 364 and 374, and on the section on disclosure in the Case Management section beginning on page 275. As with his Preliminary Report, Lord Justice Jackson devotes a section to e-Disclosure separately from the section on disclosure itself, that is, the mechanics are distinguished from the scope of disclosure. Lord Justice Jackson’s concise style means that a great deal is packed into these few pages. It is all good stuff.

Jackson on Costs Free Webcast: 14 January 2010 at 1pm

This is the full text of New Law Journal’s latest reminder about today’s webcast at 1.00pm GMT

New Law Journal will host a live panel discussion on the key proposals and practical implications of Lord Justice Jackson’s final report on civil costs litigation on www.newlawjournal.co.uk after the official press conference on 14 January.

To take part, simply go to www.newlawjournal.co.uk on 14 January 2010 before 1pm and click on the link in the featured article about the webcast. There will then be a space for you to enter your name and email address and a link which says ‘view now’ and this will take you to the webcast video.

Viewing tips: To ensure you can view the webcast please test your network at www.lexisauditorium.com/mptest.aspx before the webcast starts. The VoD version will be available immediately after the live event for NLJ subscribers

Professor Dominic Regan, a leading authority on civil procedure and costs, will chair the free webcast.

Panel participants:

• His Honour Michael Cook, author of Cook on Costs
• David Greene, president of the London Solicitors Litigation Association, partner at Edwin Coe
• Bob Musgrove, chief executive of the Civil Justice Council
• Nick Bevan, senior counsel, Bond Pearce

The panel will offer immediate, expert analysis on the key points raised by the final Jackson report and predict the potential impact of his recommendations on the world of costs.

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Orange Rag: Scottish Civil Costs Review – a missed opportunity

John Craske, Head of Business IT at Dundas & Wilson LLP has contributed a guest article to the Orange Rag which hints at disappointment in the Scottish Civil Courts Review.

I wrote briefly about the Report of the Scottish Civil Courts Review on 7 October, shortly after its publication (see Scottish Civil Courts Review), and promised further comment in due course.  I drafted an article about one aspect which interested me – the role of the courts in mediation, on which the Report and I come down on the same side in what has become known as the Woolf v Genn debate – but somehow never quite got back to it.

This was, I think, because there was disappointingly little in the Report about either the use of court technology or about electronic discovery. The report acknowledged the need for better case management, but my overriding feeling, without reading the chunky second part in detail, was that technology, whether of courts or in the hands of parties, had been ducked, with a few laudable statements as to how important it might all prove one day.

How IT can support judicial reform? asks Dutch judge Dory Reiling

How many judges do you know who might write a PhD thesis with the title Technology for Justice: How Information Technology Can Support Judicial Reform, discuss it on her blog, and promise to inform you of its publication by Twitter. Not many, I suspect.

I met Dory Reiling, or Abeline Dorothea Reiling, Vice President of the Amsterdam District Court, to give her full name and rank, when we sat together on a panel moderated by Patrick Burke of Guidance Software at IQPC’s eDisclosure conference in Brussels at the end of September. I wrote about the session in my post Information Retention at e-Disclosure conference in Brussels.

The Continuing Challenges of Preservation, Collection and Exchange

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.

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

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.

Master Whitaker addresses London Solicitors Litigation Association on e-Disclosure

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).

LexisNexis eDiscovery conference in Singapore

As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.

The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named.

Spitting on the deck of the CPR

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

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

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

The British invade Washington again, this time to talk and learn, not burn

To say that electronic discovery is international connotes more than the cross-border ramifications of multi-jurisdictional litigation. There is commonality in the problems, the rules and the solutions, to say nothing of the implications for law firms of new ways of working. The Masters Conference was an opportunity to explore many of them.

My ambition to report on the Masters Conference in Washington before reaching the LexisNexis e-discovery conference in Singapore was defeated by various things – only so many hours in the day for one thing, and no power sockets on the planes. As I begin writing this, it is 4.00am in Singapore a week later and the conference here has been and gone.

Next stop Singapore for LexisNexis E-Discovery Conference

Practice Direction No 3 of 2009 in the Supreme Court of Singapore is entitled Discovery and Inspection of Electronically Stored Information and took effect on 1 October 2009. I am off to Singapore today to take part in a conference organised by LexisNexis with the title e-Discovery & Digital Forensics.

My own subject, it will not surprise you to know, is International Parallels in e-Discovery. I aim to distil what has come out of the US-UK judicial panels which we have now done in both London and Washington and which have picked out what is best and worst from both jurisdictions. The words competence, co-operation and proportionality will inevitably feature in my speech as they do, expressly or by implication, in the new Practice Direction.

Packed programme for Masters Conference

The 2009 Masters Conference takes place in Washington on 12 and 13 October. Its title, Global Corporate Change – Navigating Discovery, Risk and Security covers only a fraction of the subjects covered in two days.

The best part for me last year, and the main reason I went, was a keynote speech by US Magistrate Judge John Facciola which I reported at length (see Leadership in Litigation). This took the debate beyond court rules and litigation technology and up into the importance of the court as a component of society. There is a direct line between competence and the efficient use of technology (on the one hand) and access to justice (on the other). Lawyers, judges, and governments which do not to make the courts accessible to everybody are not just failing their clients, the parties appearing before them or those whom they govern. Judge Facciola has the knack of making these things sound not just worthy sentiments but objectives directly related to our daily work.

What makes this job interesting is the breadth, from the minutiae of data handling to matters of state policy. There is almost no corner of the field which is not touched on in the course of the two day conference. If I pick out just the sessions from the program on the entirely random basis that I know the speakers, that is enough to give you the flavour of it.

Scottish Civil Courts Review

One of my aims this evening was to knock out a few words on those parts of the newly-published Report of the Scottish Civil Courts Review as relate to case management and disclosure of documents, before moving on to one of the many other topics which warrant discussion.

Two hours later, I have done no more than draft an appreciation of its broad approach to mediation, case management and the use of technology and have run out of time and space for the section on documents as evidence.  It is good, thoughtful stuff, but even though I skipped the sections which do not concern me, the evening has gone.

Information retention at e-Disclosure conference in Brussels

I demonstrated my own commitment to information retention by mislaying my notes of the sessions at IQPC’s Information Retention and E-Disclosure Management Europe Conference in Brussels last week. As with all the best document retention policies, this means that I do not have to wade through masses of information and can focus instead only on that which is important – “important” in this context meaning what I can remember. It is reasonable to assume, perhaps, that the bits I remember are those which mattered most.

Patrick Burke and Judge Peck

We kicked off with a judicial panel moderated by Patrick Burke, Senior Director and Assistant General Counsel at Guidance Software. Patrick is one of the relatively few in the US who “gets” the idea that, however sophisticated the US legal system may be in many respects, those who do business in a multinational context must take notice of jurisdictional differences. Rather too many assume that things are much the same over here if you shout and wave your arms about.

Technology and constitutional protection at the Supreme Court

Readers will know that the defence of our democratic rights vies for my attention with efficient case management and the use of technology in litigation. The new Supreme Court combines both of these interests.

There is a story of a former Lord Chancellor, Lord Hailsham, who wished to speak to an MP called Neil whom he had espied in the public corridors of the House of Lords, and ran after him calling his name. Hailsham was, so the story goes, in full fig of robes and garters then worn by the Lord Chancellor. What would you do, as a tourist in that august and severe building, if an authoritative-looking man so dressed ran by shouting “Neil” in a commanding voice? They did as they were told.

Hailsham left office in 1974, so the story is not that old. Much has changed since then in the House of Lords – the hereditary peers have nearly all been expelled; the Lord Chancellor (a member of the government) surrendered the right to sit as a judge;  he is now not a Lord at all but a dull little man in a suit from the House of Commons, following a botched attempt to abolish the post in 2003; and now the separation of executive and judicial powers is complete with the removal of the national court of last resort to a Supreme Court on the other side of Parliament Square.

Judicial College gives hope of e-disclosure training

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

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

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

Judge Facciola on US and UK judicial discovery education

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

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

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

Jackson Litigation Costs Review consultation ends

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

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

Well-justified anonymity of Jackson commentator

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

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

Woolf v Genn: the decline of civil justice

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

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

Lord Neuberger to be Master of the Rolls

It is good news that Lord Neuberger of Abbotsbury is to be the new Master of the Rolls from 1 October (see the Times story here). The Master of the Rolls is the Head of Civil Justice and therefore the one who will be in charge of implementing the litigation costs recommendations to be made by Lord Justice Jackson at the end of this year.

His past roles include a stint as Judge in Charge of Modernisation which is a useful piece of background to bring to a civil justice system which desperately needs bringing up to date, both in its own systems and in the attitudes which the judiciary bring to court and should expect of parties.

I sat next to him at a Judicial Studies Board meeting last year when HHJ Simon Brown QC and I went with Mike Brown of Epiq Systems to talk about electronic disclosure and to show what modern litigation support systems were capable of doing. It would fair to say that not everyone in the audience got the point. Lord Neuberger certainly did.

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Getting away from it all

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

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