Revival of UK Litigation Support Technology Group – LiST – with meeting on 24 January

There is a meeting of LiST – the Litigation Support Technology Group – at Allen & Overy at 5:00pm tomorrow, Tuesday 24 January. This is a welcome revival.

The Litigation Support Technology Group is a UK think tank, formed in 2003 by a group of litigation support specialists whose aim was to encourage and develop a uniform approach to the use of technology in litigation. It produced drafts of a practice direction, a technology questionnaire, a data exchange protocol and a revised disclosure statement which did much to advance thinking about the procedures and documents needed to make electronic disclosure more efficient.

The self-given label “think tank” implied, and deliberately so, that LiST was a gathering of the knowledgeable. Its members were those with practical experience of managing electronic data and, specifically, of managing the expectations of opposing parties, separating contention about facts and issues from the mechanics of disclosure and exchange. Its work, and specifically its drafting experience, contributed significantly to the 2010 eDisclosure Practice Direction and Electronic Documents Questionnaire.

Vince Neicho of Allen & Overy who is, as I am, a member of Senior Master Whitaker’s working party which drafted the Practice Direction, has long wanted to revive LiST now that the practice direction is in the rules with more prominence and detail than its predecessor PD.

The aim is a steering committee approach, with members contributing to working groups designed to share experiences, to identify what works and does not work in the way firms work together, and to give members the opportunity to meet each other – it is very much easier to work with someone constructively if you have at least met them.

The criteria for membership are (and I quote) that “the candidate should be personally involved in the day to day practice of dealing with ESI for dispute resolution or regulatory purposes and be employed by a law firm, a Government agency or within a litigation support department (or similar) of a commercial organisation”.

The first meeting of the reinvigorated LiST is to be held tomorrow, Tuesday 24 January, at 5.00pm at the offices of Allen & Overy. LiST’s Honorary President, Senior Master Whitaker, will address the meeting.

Contact Jo Eates Jo.eates@allenovery.com or Vince Neicho Vince.neicho@allenovery.com  for further information.

Home

Jonathan Maas joins Ernst & Young

Jonathan Maas has joined Ernst & Young as an Assistant Director in its Forensic Technology & Discovery Services team in London. This is good news for both of them. It is also good news for the development of electronic Disclosure in the UK – Jonathan is one of the best advocates for the subject, and the conjunction of his ability and experience with the team which Paul Walker and Sanjay Bhandari have built up at Ernst & Young is a force for good in the market which it is my job to promote.

I first met Jonathan in 1993 when he managed the litigation support team at Lovells when I went there to demonstrate some litigation support software which I had written. I did not manage to persuade Lovells to buy it, but Simmons & Simmons took it, and it was in use there when Jonathan moved to Simmons in 1994 as their first litigation support manager. He was a demanding task-master on the projects which we did together before he moved to DLA Piper as their Head of Litigation Technology in 2006, but those were the years when I developed my skills as a hands-on litigation support consultant, and S&S was a good client to have.

Jonathan is best known, though, for his role in the LiST Group, a high-level think tank of London-based litigation support managers. He was in the LiST working groups which, between 2004 and 2008, drafted a Practice Direction for the use of IT in Civil Proceedings, a Data Exchange Protocol, a Technology Questionnaire and a revised form of Disclosure Statement. It is LiST’s work which got me interested in the rules as the best mechanism for encouraging the take-up of electronic methods for handling electronic data. As a supplier, which I then was, I was disqualified from membership of LiST and its working groups, but was actively involved in the consultation phases. That experience led in due course to my membership of Senior Master Whitaker’s working party whose draft Practice Direction and ESI Questionnaire owe much to the earlier work of LiST (not least because three other LiST veterans were also members and Master Whitaker is that group’s honorary president).

Jonathan’s role at DLA Piper curtailed his ability to spend time on LiST and on the development of court-driven ways of managing e-Disclosure. He disappeared from the conference scene in which he had been an active player on both sides of the Atlantic, which was DLA Piper’s loss as well as ours. What is remarkable, however, is that his name persisted in the market as one of the key people to make contact with over the four years for which he was effectively off the field.

It seems unlikely that his talents as one of the most recognisable faces of international e-Discovery will be wasted at Ernst & Young. The team there has been built up steadily over the three years since Paul and Sanjay joined E&Y, and my outsider’s perception has been that the team was ready for an outward facing, client-getting big name to help promote E&Y’s strengths in investigations and dispute services. There are not many faces in the market which stand out in the crowd.

Home

A flying visit to Edinburgh

The spate of blog posts last week-end was a clearing of the decks in the knowledge that I would not have much writing time for a bit. The Edinburgh trip which is the subject of this post is being followed by some in-house sessions for lawyers, and when there is a choice between talking to people and writing, the talking comes first. I also had to take every last stick of furniture and cabling, right down to the router, out of my office so that it could be  decorated and, after 11 years in the same room, that takes some reassembly.

I was in Edinburgh on Tuesday, speaking to the Scottish Society for Computers & Law with Ian Manning of Raposa Consulting and Nigel Murray of Trilantic. Trilantic organised it, and kindly invited me to take part. The law technology commentator Charles Christian of the Orange Rag has rather unfairly labeled me as the Ancient Mariner of air travel on the basis that I no sooner book a flight than either the prices plummet or the airline announces a strike. This is the first time, however, that an airline has actually ceased trading between my booking the ticket and take-off. Shortly after I was invited to go to Edinburgh, a small airline announced the opening of a route from Oxford to Edinburgh, and the price, the convenience, and the wish to support a local venture caused the suspension of my usual caution and my loyalty to British Airways. If someone ever offers to fly you from just up the road to where you need to be for £49 each way, then the offer is almost certainly too good to be true – and so it proved. The airline suspended flying in days, and I ended up as usual in my branch office, the BA Executive Lounge at Heathrow’s Terminal 5. Don’t even ask about the return journey.

In between, however, it was a good trip. Ian Manning and I went to see one law firm which gave us a feel for the climate and the context – you can read all you like about a jurisdiction, but you have to go there to begin to understand those things which are the same and those things which are different.

LiST publishes draft Disclosure Statement

The LiST Group has published a draft revised Disclosure Statement on its Publications page. The draft was submitted to the DCA (as was) in 2006 with a view to kick-starting a discussion about this under-regarded element in the disclosure process. As with their other contributions, LiST got a polite acknowledgement and no more. As electronic disclosure comes back onto the agenda, it is a good time to raise the subject again.

HMCS forum on IT Development

A new forum has been set up to encourage an exchange of plans and ideas between HM Courts Service and the legal profession on business change and matters affecting the courts.

The forum will allow HMCS to talk about its plans and to hear about what is happening in the legal profession which may affect or influence those plans. The primary subject is business change rather than just IT, although IT will obviously be a major topic.

The group will be chaired by Mr Justice Stanley Burnton, the Judge in charge of Modernisation and IT. He has been appointed to the Court of Appeal with effect from 21 April, but will retain responsibility for Modernisation.

LiST Group expands

I have written appreciatively about the work of the Litigation Support Technology Group – LiST – on my web site. LiST is a think-tank, whose members – all skilled and experienced litigation support people in law firms and analogous organisations – have spent a great deal of time working through the issues which they come across in giving and receiving electronic documents and other data in litigation.

LiST does not purport to address directly the needs of those who are starting out with electronic disclosure – that is my job, but much of what I talk and write about is informed by what LiST does and by discussions with its members. Thought-leadership needs both tiers – new ideas evolve amongst the experts and their wider application needs a different mouth-piece.

Australia updates Federal Court ediscovery rules

New court rules for handling electronic documents are expected in Australia before the end of 2007. They will bite on as few as 500 documents, there will be a court-appointed expert to manage cases, and there is a massive investment in the infrastructure of the courts. The UK will be left behind.

The reasoning and the arguments are the same as in the UK and the US. Articles about the pending rules somehow imply that Australia is behind us in this area, which is not my own impression as to e-discovery. Australia is way ahead of the UK in investment in the civil courts

First e-disclosure training for judges

I led an e-disclosure training session in Birmingham last week for a room-full of District Judges and Specialist Judges from Chancery and Mercantile Courts in Birmingham, Bristol, Manchester and Leeds.

We covered the Practice Direction to Part 31 CPR, the CPR provisions specifically relating to disclosure, and the discretionary and management powers which might be used, or better used, to reduce the time and costs of disclosure where there were electronic sources of information.

The result of the discussions between parties which the Practice Direction requires may well be that there are no electronic sources worth considering – but that cannot be determined if the discussion does not take place.

We then looked at the sources of electronic documents and the software and services which are available to help firms, whether they want to keep the work in house or send it out to others.

The primary conclusion was that the biggest single contribution to controlling time and expense would be a technology questionnaire sent out by the court before the first Case Management Conference. No formal or statutory authority is needed to use such a questionnaire and a draft exists – LiST (the Litigation Support Technology Group) annexed one to their draft Practice Direction for the use of IT in Civil Proceedings in July 2005.

My report on the day is on my web site in two parts – a summary of the ground covered and a commentary on the messages derived from it.

If any points arise which you would like to discuss, or if you would like a similar session to be given at your firm or company, please contact me.

Home

Training for judges in e-Disclosure

“I have been asked to develop and deliver a training course for judges on the subject of e-disclosure. There are two broad headings – the nuts and bolts of the technology and the proactive use of the CPR to encourage parties to consider whether electronic disclosure may help to reduce the time and expense of litigation. The idea is that closer Case Management at the outset, fortified by an understanding of the available tools and methods, will cut the time and money wasted on otiose disclosure of irrelevant documents”.

This is the opening of my article called Training for Judges in e-Disclosure, first published on Computers & Law, the web site of the Society for Computers and Law.

Agree on Disclosure – or the judge will decide for you

If the parties fail to agree on the handling of electronic sources of information as required by the Practice Direction to Part 31 CPR, the judge might impose his own ideas on them. The result may please neither side.

This article concerns a US case. Assume for the purposes of reading about it that the US “meet and confer” concept and the court’s powers to make discovery orders are similar in principle, if not in detail, to those given in our CPR.

What can the CPR learn from the FRCP?

Reza Alexander of DLA Piper UK LLP is perhaps the most knowledgeable UK expert on the implications of the recent e-Disclosure amendments to the US court rules. I will point you in a moment to an article by him, but first a little background….

 

If you don’t understand the acronyms in the heading, you are probably on the wrong web site. The Civil Procedure Rules, or CPR, is the body of rules, practice directions and protocols which govern the conduct of cases in the High Court and County Courts of England and Wales. The Federal Rules of Civil Procedure, or FRCP, is the Federal equivalent in the US.

OutIndex imports orators as well as Outlook

OutIndex, makers of low-cost software which imports and processes mail files and electronic documents, invited some top US e-Disclosure experts to speak at their Legal Technology Summit yesterday. English judges are showing increasing interest in using their CPR powers to order the use of technology to cut down Disclosure costs. The software supplies the means, and the judicial pressure gives the motive, to think again about e-Disclosure.

 

Define what you want from litigation software. I don’t mean the all-singing-all-dancing systems for your star cases, I mean something which allows you to hack quickly – and routinely – into your clients’ Outlook and Lotus Notes mail files and their folders of documents for a first-pass review.

Business and pleasure mix at Trilantic party

To Broadgate last night for Trilantic’s last Third Thursday party, although by the time I got home it felt as if it had been last Thursday’s third party. Nigel Murray’s parties tend to leave one feeling as if one has been drinking and eating well all day.

Master Whitaker Honorary President of LiST

Master Whitaker has agreed to become Honorary President of LiST, the Legal Technology Support Group.

Master Whitaker is a Master of the Supreme Court, Queen’s Bench Division, and a member of the Civil Procedure Rule Committee.

He has long been an enthusiastic proponent of the use of technology in the UK courts, and is a frequent speaker at seminars and conferences, particularly on the subject of e-Disclosure.

There is information about LiST on my web site, including a commentary on LiST’s Data Exchange Protocol Part 2 of 2 – Disclosure Data which was published at the end of April 2007.

Home

LiST’s Data Exchange Protocol – Disclosure Data

“Part 2 of LiST’s Data Exchange Protocol says that adherence to the Protocol “may require a party to enlist the expertise of an external consultant”. That is what I do, and is both my reason for writing about this area and the qualification for doing so. I mention it at the beginning, rather than shyly slipping it in at the end, because the availability of such services, and the fact that you can rent litigation software, host it externally and outsource the scanning and coding, means that anyone engaged in document-heavy litigation can compete on equal terms with the large firms whose experts wrote the Data Exchange Protocol.

What follows is therefore a summary of LiST’s Data Exchange Protocol for the benefit of those who may not have in-house expertise or software but who are receptive to the idea that their clients’ interests, and their own commercial interests, lie in competing for document-heavy dispute work with large and technically-proficient firms, and in doing it cost-effectively.”

 

This is an extract from my commentary on Part 2 of LiST’s Data Exchange Protocol, which came out at the end of April.