Cardozo School of Law launches Data Law Initiative

June 10, 2014

The Benjamin N Cardozo School of Law in New York has launched a new programme offering legal training in information governance, electronic discovery, data privacy, social media law and cyber security. Between them, these subjects cover a wide range of areas which are essential for 21st-century lawyers.

The director of the CDLI will be Professor Patrick Burke, Counsel at Reed Smith LLP. The Associate Director will be Professor Denise Backhouse, a shareholder at Littler Mendelson, whose practice focuses on the discovery, international data privacy and security issues. I have known both of them for a long time and can say with certainty that Cardozo has picked the right people.

US Magistrate Judge John Facciola, a well-known judicial authority on eDiscovery and related matters, has long complained that the training offered at most US Law schools differs very little from what he was taught 45 years ago. The course devised by Cardozo aims to remedy that, at least for those fortunate enough to join the courses.

There is a press release about the initiative here. Patrick Burke and Denise Backhouse are supported by a a 20 strong Board of Advisers; I know 14 of them and can say from personal experience that this is as good a selection of advisers as could be found for a law course whose focus is on practical things.

Here is a video interview which I made with Patrick Burke and Denise Backhouse in February in which they describe the importance of the broader educational initiatives to which they and Cardozo are committed. I will be interested to hear from them how it goes.


Justice takes a bashing but litigation work goes on

April 2, 2014

To say, as I did in a recent article, that that “civil justice in the UK has plunged off a cliff” is not the same as saying that civil disputes are in decline. Litigation lawyers, at least at the mid- to high level, seem to be busy enough, as do most of the London-based eDisclosure providers. The Jackson Reforms, now a year old, have positively generated work for some, although much of the focus has been more on procedural matters than on evidence and issues. Part of this, conveniently labelled “Mitchell”, has been negative, the opposite of the “justice” which the overriding objective requires; part of it, and particularly the eDisclosure aspects, reflect the attention which the rules now require on the sources, the methods and the costs of disclosure. One can deprecate the Mitchell aspects whilst thinking it right that parties are being required to pay early attention to the evidence and to the prospective costs.

Whilst in the US recently, on a tour which embraced both eDiscovery events and a short holiday, I wrote an angry article (“blistering” was amongst the comments I received) on the state of British civil justice. If that seems an odd way to spend a holiday, well, the times are odd and it annoyed me. Better out than in as they say, so I wrote to get it off my chest. The article was headed The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them.

The article had three targets – a Lord Chancellor who seems ignorant of the basic concepts of justice, a Ministry of Justice staffed by people whom I described as “standard issue overpaid time-servers and… academics who have failed to hack it in the strenuous world of university life”, and senior judges whose understanding of the practicalities of business life is defined by their lifetime experience of working for very big firms, on very big cases, for very rich clients.

I referred to one or two of the responses to the Civil Justice Council’s consultation, mainly to show that my observations were derived from the daily experience of those who have to deal with the consequences of these things. I was at pains to draw attention to differences (identified in some responses) between Lord Justice Jackson’s original recommendations and the position in which we now find ourselves. Quite apart from the fact that he had nothing to do with (for example) the reduction in legal aid, Lord Justice Jackson specifically recommended investment in court systems; whilst he was keen to encourage compliance with the rules, it was no part of his plan that we should have the climate of fear and uncertainty which derives from Mitchell. Read the rest of this entry »

Kennedys seminar on 12th March in Birmingham – Surviving Jackson: one year on

March 6, 2014

Solicitors Kennedy’s gave a seminar this week with the title Surviving Jackson. Many of the points made in it were live-tweeted and the tweets have been collected here by academic and lawyer John Bates @MrJohnBates. They provoke thought.

Kennedys is running a seminar with the same title in Birmingham on 12 March from 2:00pm to 4:00pm. The speakers are Edward Pepperall QC who is a member of the Civil Procedure Rule Committee and Kerry Underwood who is perhaps the most vocal critic of the Jackson reforms. There is more information about this event here.

Knowing the rules is a good start, something which seems to have passed many solicitors by (read some of the judgments if you think I am being overly disparaging here). Anyone might be forgiven, however, for missing some of the implications of the Mitchell judgment and its confusing aftermath. This seminar seems a very good opportunity to try and keep up.

If you are affected by this and are not following barrister Gordon Exall’s Civil Litigation Brief then you should be.


Plebgate costs sanctions judgment to go to the Court of Appeal

August 30, 2013

Master McCloud’s judgment limiting the costs which Andrew Mitchell MP can recover in his libel case (I wrote about that – see New costs management litigation budget rules claim Plebgate victim) is to be heard by the Court of Appeal.

This reflects the importance which is being attached to early clarification of issues which arise from the Jackson reforms which took effect on 1 April. Five appeal judges, including Lord Justice Jackson himself, have been appointed to hear such appeals. My view is that the Master was given no option by the express wording of the sanction specifically provided for in the rules:


…with her room to order otherwise trammelled by the policy made clear in the Master of the Rolls’ speech about relief from sanctions (see my earlier article for a summary of this). Whether the policy is right is a different matter – I think it is (sorry), but that is distinct from my conclusion that the Master was right.

There is more information about this in an article in the Lawyer called CA to hear “plebgate” costs challenge after High Court cuts libel budget.


Costs management – relief from sanctions under CPR 3.9

August 15, 2013

One of the things I had hoped to achieve before setting off to ILTA was a post pulling together what one knows of reports of relief from sanctions cases under Civil Procedure Rule 3.9 specifically relating to costs management and budgets.

I am relieved of this non-trivial task by the fact that costs lawyer Andy Ellis has written just such an article, published today by the Law Society Gazette with the heading Relief from sanctions in costs budgeting

The report is right up to date, including the main points made by Master McCloud in the “plebgate” libel action on which I wrote here.

You won’t find a better survey than Andy’s article of the factors which the courts are taking into account as they reconcile strict duty with fairness.


New costs management litigation budget rules claim Plebgate victim

August 9, 2013

The former Overseas Development Secretary Andrew Mitchell is the latest victim of the strictly-applied new costs management rules. The solicitors acting for him in his libel case against NGN failed to file a budget as required by the Rules, and Master McCloud has declined to relieve Mitchell of the sanction provided by the rules. You will find helpful articles on this, one on the Litigation Futures website called Tough enough? Failure to comply leaves “Plebgate” MP with budget limited to court fees, and in The Lawyer, where the headline is High Court caps ‘plebgate’ libel budget to court fees for Andrew Mitchell MP.

Let’s deconstruct this a little, particularly for the benefit of those who are interested in the budgeting developments in the Civil Procedure Rules but not necessarily familiar with the context, whether the news context or that of the Rules. The budget story would not have seen daylight if the particpants were not well known and linked by a news story of public interest.

The origin of the libel claim

Ever since Watergate, the press has routinely added the extension “-gate” to any kind of scandal. “Plebgate” differs from most in that it does actually involve a gate. The press loved it when ambitious Cabinet Minister Andrew Mitchell was reported as having addressed Downing Street security police as “plebs” when they made him wheel his bicycle through a side gate instead of opening the main Downing Street gates as (it was said) he deemed to be his right.

There was something for everybody in this story: for many, it seemed to prove that Cameron’s Conservative government was made up of unpleasant toffs who despised anyone who had not attended a private school; for others, it was another example of officious little jerks in hi-viz jackets using their petty power to inconvenience the public they are supposed to serve. Mitchell clung on for a few days, cautiously supported by the Prime Minister, but was eventually forced to accept the inevitable and resign.

It was only after this that holes started to appear in the story. The CCTV evidence did not support what the police said (why did no-one ask for it immediately?), and it gradually became clear that there had been a concerted plot to “get” Mitchell by inventing the story; arrests were made, the police had egg all over their faces, and an expensive police-on-police inquiry was launched. Mitchell began libel proceedings against the publishers of the Sun newspaper which had swallowed and repeated the police story whole. It is those libel proceedings which are the subject of the costs story. Read the rest of this entry »

Battle over costs budgeting for high-value commercial cases

August 2, 2013

Here is a battle to keep out of, so I simply pass on the facts as they appear in an article by John Hyde today in the Law Society Gazette. Well, a bit more than pass them on, perhaps, but I will duck any attempt to take sides. Not really, anyway.

The article is headed City lawyers plead to keep budgeting exemption. The context is the decision, made during Lord Justice Jackson’s consultation period, that the Commercial Court should be exempt from the costs management and budgeting provisions which were to apply elsewhere. It is possible that the exemption was a pragmatic concession, leaving out the Commercial Court because it was going to be too tiresome to fight about something which had the potential to stand in the way of broader advances. It looked similar, to my eyes, to a battle commander’s decision to leave a strong fortress unstormed whilst pressing on with the rest of the campaign.

It was not just the Commercial Court judges who were against costs management. Many of the lawyers who bring high-value claims to the Commercial Court were strongly opposed to the principle of budgets, asserting that their clients weren’t interested in them; the nature of Commercial Court litigation, they said, was such that budgets would be time-consuming, expensive and of little value. These are the same arguments which are being run now, according to John Hyde’s article.

If I appear cynical about this, it is partly because of what happened after the new Rules passed into law, itself only a few days before the implementation date. At that rather late stage, the judges of other divisions with high-value cases became alerted, apparently for the first time, both to the proposals for cost budgeting and to the exemption won by the Commercial Court (the rest of us, I should observe, had known of the costs management proposals for a year or so by then). There followed what was, by judicial standards, an unseemly scramble, with the Chancery Division and certain specialist courts apparently basing their late claims for exemption on a kind of protectionism – if the Commercial Court did not require budgets, then parties would take every opportunity to issue their proceedings in that court, it was asserted, leaving their Lordships in the other divisions straightening their pens and scratching under their wigs in empty courts.

To me, this looked rather like supermarkets trying to restrain the grant of planning permission for a rival, and had little to do with justice, or with commercial reality for most clients for whom a litigation project is no different in kind to any other project. If you plan a new building, seek to acquire a company, or open a new line of business, you do an analysis of risk, cost and benefit. That may change as time goes by, but at least the decision has been made on an informed, prudent and defensible basis. It is hard to see why litigation is any different.

It is clear, however, that many high-end commercial litigation solicitors think otherwise, including some whose opinion I respect, and I am not going to get into an argument in which principle conflicts with the experience of those who deal with high-end clients and their litigation every day. I will observe only that we do not seem to have heard from any of these clients in this dispute. What do they think about the idea of budgets from their own lawyers and from opponents?

According to the Gazette article, a decision will be made in the autumn.


Being prepared to prepare for costs estimates and budgets in post-Jackson litigation

July 11, 2013

At first glance, it may seem that my headline is somewhat repetitious, but you read it aright. Many lawyers engaged in litigation in England and Wales are well prepared for whatever comes from the new rules, and find the obligation to agree budgets with opponents merely an extension of something which they always do for their clients anyway. Others need to get ready to be ready for the idea.

Joanna Goodman of the new magazine Legal IT Today asked me to write an article for its second edition (you will find it here), giving me a wide brief to write something about case management, cost estimates and budgets. I did not provide the heading eDisclosure: be prepared to prepare, but it is a reasonable label to give to my article, whose sub-heading was Preparation brings benefits in post-Jackson eDisclosure case management.

A quick skim of most of the articles written about Jackson and eDisclosure shows a focus on the risks and burdens. You won’t find me underestimating these and, indeed, I open my article by  saying that it is “foolish to suggest that it will prove easy to comply with the new rules.”, not least because of the wild-card represented by the judge.  You can go fully-prepared to a CMC and find a judge who simply does not get it. There is more to this than just risk, however, and my approach in the article (which you will find at page 32), is expressed thus:

Despite all this, however, the purpose of this article is to suggest that there are benefits, strategic, tactical and beyond, which are available to those willing to take them. If this is the glass half-full view, then its glass half-empty corollary is that serious risks face those who are unfamiliar with the rules and how to deal with the new obligations. Read the rest of this entry »

Breaking the dam: barristers moving in to eDisclosure

June 3, 2013

There are over 3,800 words here, in a detailed report on Legal IQ’s Information Governance and eDisclosure Summit, so bring coffee and a comfortable chair. If you don’t have time for that, the message can be reduced to a few quotations, not all of which appear in the text:

“You have to be specific about what you want to buy” – Drew Macaulay of Consilio

“Sweaty palms”, “blood on the floor” – Judges anticipate costs management

“Look judge, here’s an idea” – Damian Murphy of Enterprise Chambers

“No estimates survive first contact with the data” – Browning Marean of DLA Piper

“Make sure your lawyers [in regulatory investigations] understand eDiscovery” – Allison Stanton of the DoJ

“What tasks are [litigation lawyers] uniquely qualified to do? – Richard Susskind

“We’re all f*****. I’m f*****. You’re f*****. We’re all completely f*****.The whole department is f*****. It’s the biggest cock-up ever. We’re all completely f*****.” - Sir Richard Mottram, Permanent Secretary at the Department of Transport in 2002.

There, that’s set the tone. You may deduce from that much that the rest of this is about costs control, about being on top of the facts and the metrics, about being inventive and able to react to changed circumstances, and about being realistic about the best way of getting the job done. The last quotation is for those who do not accept the need to think differently about the management of eDisclosure / eDiscovery.

ViewfromLancasterThe view from the Lancaster Hotel

On 16-17 May 1943, the remnants of the Dambusters squadron returned to RAF Scampton having destroyed two German dams and damaged a third. My headline came to me without direct reference to that anniversary, though it was presumably derived subconsciously from the memorial events which coincided with Legal IQ’s Information Governance and eDisclosure Summit in London. The dam which I had in mind was the conventional structure of litigation departments and the manner in which electronic disclosure is performed and priced.  I came away from the conference  feeling that, if the dam is not yet broken, it took a severe battering. Standing in for 617 Squadron was an unlikely combination of a professor, an insurer and two barristers. Read the rest of this entry »

An optimistic article about eDisclosure post-Jackson – and a less sanguine one

May 1, 2013

Georgina Squire of the London Litigation Solicitors Association has written a concise and practical guide to eDisclosure under the new rules, which has been published in the New Law Journal. It is called A brighter future? (not the first, I think, with that title on this subject, but the message is an important one) and it emphasises the need for early attention to scope, for discussions aimed at narrowing the arguments, and for focus on what really matters.

I don’t agree with all of it – the sentence The new disclosure rules are a significant departure from the previous approach of “leaving no stone unturned” ignores the fact that that expression comes from two cases (Digicel v Cable & Wireless citing Nichia v Argos) in which looking under every stone was expressly disapproved of. The new rules are not a “significant departure” from that approach but a reinforcement of it.

That apart, this is a good article, worth reading by those who are facing their first CMC since the rules came in.

Meanwhile, Richard Harrison of Laytons, one of the more thoughtful of the litigation lawyers who actually have to do this stuff, has set down his view of Precedent H and the context in which it is to be used. His article, on the SCL website, is called Cost Management and Budgeting: the Absurdities of Precedent H and has as its opening sub-heading The need for scepticism. Read the rest of this entry »

Epiq Systems seminar focuses on the new Costs Management rules

April 26, 2013

Epiq Systems held an extremely informative seminar on the new costs regime earlier this week. You will find at the end of this post a link to the video made on the day with the strong recommendation that you watch it.

“The thing about Dominic Regan”, somebody once said to me, “is that nearly everything comes down to costs to him”. It was meant as a compliment, and reflected the fact that much of the Civil Procedure Rules, of the case law which exists around it, and of the strategy of litigation, runs sooner or later into questions of costs. There are, of course, litigants for whom expense is no issue, cases which must be fought at any price, and large sections of the rules which regulate aspects of procedure to which costs have no direct relevance. The justice which is set squarely in the opening section of the overriding objective, however, is no justice at all if parties cannot afford it;  Lord Justice Jackson’s remit, however widely drawn, was driven by the need to control costs, and the rule changes which are named after him largely reflect that.


Professor Dominic Regan was one of four expert panellists at a seminar organised by technology provider Epiq Systems in London this week. The others were Master Colin Campbell of the Senior Courts Costs Office, costs expert Michael Bacon and Allen & Overy litigation support manager Vince Neicho.  The room was packed, and if much of the focus was on eDisclosure, the panel ranged across the wider implications of the new costs regime. The session was led by Epiq’s Saida Joseph. Read the rest of this entry »

The Ghost of Legal Services Yet to Come – a Futurist tells of things that may be

April 6, 2013

LegalTech Asia Technology Summit opened in Hong Kong with a thought-provoking keynote from futurist Rohit Talwar. Don’t be put off by that “futurist`” label – UK solicitors (and even barristers) get something to think about from talks like this. I pick out the themes and points which are relevant to lawyers now. The Scrooge parallel, I should stress, is mine not Rohit Talwar’s.

gocytc“Before I draw nearer to that stone to which you point,” said Scrooge, “answer me one question. Are these the shadows of the things that will be, or are they shadows of things that may be, only?”

Still the Ghost pointed downward to the grave by which it stood.

“Men’s courses will foreshadow certain ends, to which, if persevered in, they must lead,” said Scrooge. “But if the courses be departed from, the ends will change. Say it is thus with what you show me!”

Scrooge’s story is, as we know, one of redemption, and futurist Rohit Talwar, keynote speaker at LegalTech Asia Technology Summit in Hong Kong at the beginning of March, was rather too jolly to make an authentic Ghost of Christmas Yet to Come. Nevertheless, his message might well make lawyers think of the grave which persuades Scrooge to change his ways or, more positively, think of ways to modify their practices to meet a changing future.

“We have got to see past the current turmoil or lock ourselves into our history”, he said, and his reference to “current turmoil” related as much to the daily rushing around with what is on our desks as to the wider economic scene.

“These futurists are all very interesting, but I want to know what my firm should do now”. This is the common cry of those who attend talks by those who anticipate business trends. I do not particularly like the label “futurist” because it somehow implies too much science and not enough flesh and blood, but that is how Rohit Talwar describes himself, and there was certainly more than enough of the human in his talk. I occasionally meet an equivalent perception myself – because I live in Oxford and have a grey beard, it is somehow assumed that I am “academic”, and “academic” carries the implicit connotation of  separation from the real world. My focus is in fact very much on commercial futures.  What Rohit Talwar has to say, as with Richard Susskind, has implications for law firms now.

Rohit Talwar packed a lot into his 90 minutes. I must be selective in what I report, sticking to those things which have obvious relevance to eDiscovery and to the business processes needed, both by law firms and by their clients, to elevate eDiscovery beyond being a plod through the rules or (which is just as bad) being a mechanical set of tasks with little apparent relevance either to evidence and law or to business objectives. Read the rest of this entry »

Challenges to meet and not just threats in the Jackson reforms

March 15, 2013

A senior clinical negligence barrister suggests that we think positively about the Jackson reforms.

Shortly after the UK Bribery Act passed into law, I took part in a London panel about its implications. At the Q&A session at the end, a solicitor launched into a diatribe about the Act which I interrupted rather roughly. The time for consultation had passed, I said, and the Act had passed into law; there was no point in whining about it or suggesting that things might have been done differently; the object of the panel and its Q&A session was to focus on how to deal with it.

An article by clinical negligence barrister Nigel Poole QC makes similar points about the Jackson reforms and, indeed, draws attention to potential benefits from the changes. His article is headed Singapore Spring – Clinical Negligence Litigation after 1 April 2013, but it has interest beyond that specific area of practice. The Singapore reference is to Lord Justice Jackson’s enthusiasm for the case management regime in that jurisdiction. There had been much grumbling, Jackson said, when the new rules started to bite, but lawyers had come not merely to accept them but to find more work as litigation became more efficient and affordable. Nigel Poole summarises this with the sentence “if the courts give lawyers and experts the hurry up, that might just be good for clients.” Read the rest of this entry »

The definitive version of the CPR amendments – definitive for this week anyway

March 13, 2013

The launch of the Amendments to the Civil Procedure Rules has been a shambles, and court users can be forgiven for confusion. We needed decisive leadership at this point, something consistent with the attitude which case managing judges are now supposed to be taking towards those who do not follow the rules. If the execution matches the launch, then we have months of chaos ahead of us. This is not what Lord Justice Jackson intended, and it almost certainly would not have happened if he had not been taken off the scene by illness.

We now have the latest formal amendments to the amendments to the rules, so let’s catch them before they are in turn amended. My focus, here as everywhere else, is on case management as it applies to electronic disclosure and as to the costs estimates which have survived the successful bid for exemptions from the intended new costs management regime (I think perhaps the judges who rebelled against cost management overlooked the quite separate requirement for eDisclosure estimates).

The formal rules and practice directions relevant to case management and eDisclosure are given below, both the current ones and the amendments. Until 1 April, the Rules in force are the 59th Update. Be aware at that the time of writing, CPR internal links to PDs 31A and 31B are to old versions (that is, they have “old” in their urls). The links below are to versions not marked “old”, which I found via Google (as one does). I have not proof-read the one against the other; neither would yet reflect any 1 April updates.

This index is solely to material on the Ministry of Justice site. More follows.

Read the rest of this entry »

Costs management shambles defies parody but case management still has teeth

February 22, 2013

So, what is the overall effect of the implementation of the new Civil Procedure Rules in so far as they relate to case management, eDisclosure and budgets? Oh, I was hoping that you would tell me.

During last week, I started writing a parody, equating judicial reactions to dangerous modern concepts like budgetary control to the reaction of the peers, known as the “Backwoodsmen”, who showed no interest in the legislative process until Lloyd George threatened their very existence in the second General Election of 1910. At that point, they turned up at Westminster in their ancient tweeds, promising to “die in the last ditch” (thus their alternate name, the “Ditchers”) to defend the old ways. Tom Lehrer famously said that satire became obsolete when Henry Kissinger was awarded the Nobel peace prize. I now feel much the same about writing a parody about judicial reactions to modern commercial practices.

Someone yesterday said on Twitter that she had been embarrassed about her inability to understand it all until she realised that everyone else was similarly at a loss.

Put briefly, the long awaited Jackson reforms, whose outline has been known for nearly two years, did not go before Parliament until last week, when they were approved. They take effect on 1 April. One amendment had been agreed even before that approval, relating to costs incurred prior to the new regime. What emerged this week was evidence of a judicial rebellion resulting in agreement “on further reflection” to exempt the Chancery Division, the Technology and Construction Court and the Mercantile Courts from the strict budget obligations, an exemption which applied already to the Commercial Court and the Admiralty Court. It appears that their Lordships in the other divisions were worried that they might lose business to the exempt courts. The whole thing was rather reminiscent of the way in which one supermarket chain objects to the grant of planning permission to another on grounds which are dressed up as being objective but which amount to a kind of protectionism.

I will write more fully about all this when the dust has settled. For the moment, those who are interested might like to run their eyes over the following:

The amending legislation itself

My article extracting those parts of the rules of specific relevance to eDisclosure and case management

A much more comprehensive article by Kerry Underwood called Costs Management Orders Including the new CPR which, like my article, predates the latest developments

A litigationfutures article by Neil Rose called Major widening of costs management exemption for commercial cases.

A note (its formal status is unclear and it is just called “this document” signed by the President of the Queen’s Bench Division and the Chancellor of the High Court setting out, and purporting to explain, the extent of the backtracking.

Screen Shot 2013-02-22 at 12.10.39

The problem, apart from the overriding sense of utter shambles, is that amending statutes can be confusing enough with their necessary cross-references, removals, additions and replacements. The “document” with its extended exemptions, its side-reference to a £2 million ceiling which appears (don’t ask me) either to claw back part of the exemption or to qualify the original position (I assume in fact that it relates to the surviving cases in the QBD), and its conclusion that “it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so” leaves me unwilling to express a definitive view on what applies where.

Let’s be clear on this though:

There is no change to the provisions relating to pre-CMC exchange of information, and about attempts to reach agreement on the scope and on the method of giving disclosure.

These include an obligation to estimate the costs of disclosure – it is not clear whether their Lordships overlooked this in their scrabble to be relieved of budgetary considerations, but I see nothing in the amending “document” which affects this.

We can expect to see strict enforcement of the obligations – so far as I can see, the judges have no room to wriggle on this. As it happens, I am not in favour of over-strict enforcement of these provisions, recognising that many will face genuine difficulty in the first few months. That, however, is what the rules say, and a judge really has no alternative but to take a strict line.

Being objective about this, the judges are not the only ones with doubts about budgets. Many lawyers involved in big commercial cases think them irrelevant and others appeared to accept that the whole idea is beyond them. Well, if they can work out which cases, at what level of claim, can properly be taken to which Division, then they can duck that part of the problem for the moment. I do not myself see what is so special about litigation that it should be exempt from the normal principles of commercial risk assessment, but the Ditchers and Backwoodsmen have carried the day for the moment. Let’s see what happens as we spend another two years trying to take a proper stab at the subject. With any luck, we will see some key retirements over that period.

As always, I am more interested in the benefits rather than the burdens. Clients will like the idea that costs are being controlled, not least the costs of opponents which they might themselves have to pick up one day. Lawyers who can show that they are on top of budgets and metrics put themselves in a position both to win clients and to impress their opponents into settlement by their grip of the new rules, their understanding of the implications, and their knowledge of the “tools and techniques” (as Practice Direction 31B puts it).

As I say, I will write more about this in due course.


The Civil Procedure (Amendment) Rules 2013 relating to disclosure and case management

February 13, 2013

This post has been amended to take account of the alterations announced AFTER the Civil Procedure (Amendment) Rules had been approved by Parliament. If that part of this post which relates to costs management has lost some clarity as a result, I would not be a bit surprised. We wait for the whole lot – statute, the “document” which announced the results of “further reflection”, the amended Rule and Practice Direction 3D. Then no doubt we will start seeing some case law as parties and courts try and work it all out.

Note that the case management provisions relating to Disclosure remain intact; they include a duty to estimate the costs of giving Disclosure. Note also that the “document” giving notice of the amendment ends as follows:

Subject to the limited exceptions which will be dealt with in the direction, it is envisaged that costs management orders would be made in all cases except where there is good reason not to do so. Even when the exceptions in the rule and the direction apply, the use of costs management should always be considered

See my article Costs management shambles defies parody but case management still has teeth.

The Civil Procedure (Amendment) Rules were published yesterday. They cover a wide range of matters, all to take effect on 1 April (subject to certain specific transitional provisions relating to discrete sections).

I give below the parts of most interest to those concerned with disclosure, case management and budgets. It is notoriously difficult to copy sections from statutes, particularly amending statutes, partly because their effect can be obscured by the (wholly necessary) cross-references to existing sections and other changes, and partly because of the “clever” way that text editors seek to renumber paragraphs and sub-paragraphs once divorced from the structure of their source.

Section 4

Insert the words “at proportionate cost” into the definition of the Overriding objective in Rule 1.1 and “enforcing compliance with rules, practice directions and orders” as an additional part of the description of the court’s duty in Rule 1.2.

The latter obviously creates no new duty for lawyers or judges (those practising in civil courts are expected to know the rules and practice them; it is gross incompetence not to, as HHJ Simon Brown QC reminded us in Earles v Barclays), but signals a new toughness with defaulters.

Section 5

Active management taken to a new level:

The court may contact the parties from time to time in order to monitor compliance with directions. The parties must respond promptly to any such enquiries from the court. Read the rest of this entry »

Uncertainty means expense as we wait for the Jackson rules

January 22, 2013

An article by Neil Rose on the litigationfutures site is headed 10 weeks until Jackson and still no rules: LSLA chief warns of chaos. The reference is obviously to the wide-ranging reforms to the Civil Procedure Rules due to take effect on 1 April. The LSLA is the London Solicitors Litigation Association, whose president, Francesca Kay, does not understate things when she describes this as “wholly unacceptable”.

The case management aspects of the rules which relate to eDisclosure include the extension to a wider range of cases of the duties to discuss eDisclosure, a “menu option” which replaces the present default of standard disclosure, express emphasis on the judicial duty to direct the methods for giving disclosure and, of course, the new budget provisions.  Or so we believe – until we actually see the rules, we can only assume that they will follow what was said in Lord Justice Jackson’s speeches of last year, but for which we would be entirely in the dark. Even if the form is identical, we have yet to see the all-important transition provisions.

Lord Justice Jackson has, of course, been seriously ill, and it is no reflection on him that there has been this delay.  The Civil Procedure Rule Committee has all the drawbacks, as well as the alleged advantages, of a composition intended to reflect every group with an interest in the rules.  The downside of such bodies is that everybody wants to be heard, whether they have anything to say or not.  It would be good sometimes, on such committees, to hear someone say “I know sod all about this subject, so I’ll keep my trap shut”, but it never seems to happen.

The actual drafting lies with the civil servants in the Ministry of Justice, some of whom – how shall we put this? – are better than others. One suspects that for many of them the allure of the 17.50 to Esher outweighs the needs of court users.

Litigation solicitors, trying to give strategic advice to clients whose cases will be affected by the rule changes, really do not care who is to blame.  It is known that the policy intent behind the rules includes more stringent enforcement of them, and it places an intolerable burden on judges, as well as on court users, that the final form of the rules has yet to appear. The whole purpose of the changes is to reduce costs, but this delay, and the compliance scramble which will ensue, is bound to cost someone – the client or the lawyers (but not the civil servants of course) – significant sums of money.


Costs management: Mr Justice Ramsay describes why it is necessary

May 31, 2012

I wrote recently about the coming regime of costs management in civil litigation – see Costs management moves closer in England and Wales.

We now have a more authoritative reference document. Mr Justice Ramsay delivered a speech a few days later with the heading Costs management: a necessary part of the management of litigation, available on the Judiciary website. The speech provides as good a summary as you could want of the reasons for managing costs from an early stage in a case, of the practical implications, and of the likely consequences of the new regime.

The CPR Standard Disclosure test is a strict one says the Court of Appeal

March 19, 2012

Disclosure in UK civil proceedings, with or without an “e” at the front of “disclosure”, is not a game for amateurs, raising serious points about the strict interpretation of a deceptively simple-looking rule as well as practical considerations – and that is before you get to the technology. If UK lawyers can learn something from Shah v HSBC Private Bank, US litigators will see one reason why UK disclosure is so much narrower in scope than the bloated excesses of US discovery.

I am obliged to Ashurst for the case summary which tipped me off to the judgment covered here. The case is Shah & Anor v HSBC Private Bank (UK) Ltd [2011] EWCA Civ 1154 (13 October 2011). The claim itself concerns a delay in banking transactions which occurred because the bank suspected money-laundering and felt obliged to make authorised disclosures under the Proceeds of Crime Act 2002.

The application which came before the Court of Appeal concerned disclosure under the Civil Procedure Rules. Two questions arose: did the bank’s standard disclosure obligations require it to reveal the names of the bank employees who were involved? If they did, was it entitled to preserve that anonymity by redacting those names on the ground of public interest immunity?

The court (the main judgment is from Lord Justice Lewison) found for the bank on a strict interpretation of Rule 31.6, the definition of standard disclosure; the PII point effectively dropped away.

The paragraphs numbered down to 18 are a recital of the underlying facts. The claimants wanted to know the names of the individual employees involved in complying with the POCA requirements and with the bank’s internal procedures. The question arose as to whether this information was “relevant” although, as we shall see, this is in fact the wrong question. Read the rest of this entry »

Postscript to Dominic Regan interview on Jackson and costs management

March 9, 2012

The transcript of my interview with Dominic Regan (see Professor Dominic Regan on why the Jackson Reforms mean the biggest ever upheaval for UK litigation) seems to have attracted some attention. There are two follow-up links in which you may be interested, both to points referred to during the interview.

The first is Dominic’s interview with Lord Justice Jackson which he has now written up for New Law Journal under the heading Jackson on Jackson. Those with an interest in electronic disclosure will focus on two things – the promise of training for judges in costs management and this blunt warning to practitioners towards the end of the article:

They should start to think about costs budgeting now and also look to embrace technology. The days of paper are numbered.

Many in my profession, I know, treat a deadline as the starting gun. I remember fondly my conversation with a law firm partner six months after the UK Bribery Act came into force. I mentioned it as a reason for lawyers to become acquainted with the technology which exists both to identify deviations from the norm in a proactive way and to enable efficient reaction to requests by regulators or prosecutors. “The Bribery Act”, he said. “Ah, remind me…”. Read the rest of this entry »

Indemnity costs awarded where unnecessary costs were incurred

December 5, 2011

Have a look at the judgment of HHJ Simon Brown QC in Mortgage Agency Services Number Four Limited v Alomo Solicitors.

A few lines chosen from the end of the judgment (from paragraph 30) should give you enough the flavour of it. It is not specifically an eDisclosure judgment, but it serves as a warning to any party and its lawyers who run up unnecessary costs falling on their opponents. The remedy at the court’s hands is an indemnity costs order.

HHJ Judge Alton in Jefferson v. National Freight Carriers Ltd [2001] 12 Costs 313, 321-322…..explains the vital importance of project managing and budgeting cases from the outset based on the issues raised between the parties in the statements of case: and how it should be approached.

“In modern litigation, with the emphasis on proportionality, there is a requirement for parties to make an assessment at the outset of the likely value of the claim and its importance and complexity, and then to plan in advance the necessary work, the appropriate level of person to carry out the work, the overall time which would be necessary and appropriate [to] spend on the various stages in bringing the action to trial and the likely overall cost. While it was not unusual for costs to exceed the amount in issue, it was, in the context of modest litigation such as the present case, one reason for seeking to curb the amount of work done, and the cost by reference to the need for proportionality”.

The instant case is one where the Defences were, frankly, lamentable: prolix, obscure and irrelevant with the consequences of substantial unnecessary disproportionate costs being spent by both parties. I am told that at least 11 large conveyancing files and other material were the subject of paper disposure based on the issues raised by the Defence and the witness statements becoming very lengthy. The responsibility for that squarely lies with the Defendants, the pleader and those who signed the statement of truth.

In those circumstances I am satisfied that this is a case where the conduct of the Defence is one which requires an order to indicate the Court’s displeasure: indemnity costs. Furthermore, I am satisfied that it is only fair on the Claimants that that should be the case, putting the burden of proof on a detailed assessment on the Defendants to show, if they dare to do so, that the Claimants costs – apparently disproportionately high and in excess of approved budget as they are – are ‘unreasonable’, rather than vice versa i.e. having to prove that their own costs are ‘reasonable’.

You might like to look also at Vector Investments v Williams, where a successful party, otherwise entitled to its costs, was hit with a £20,000 costs order for the manner in which it gave disclosure and the expense caused to the other party as a result.


Rapporteur rounding up the Singapore Electronic Litigation Conference

August 14, 2011

It was a privilege to be asked to be one of the rapporteurs at the end of the International Electronic Litigation Conference in Singapore. Bryan Ghows of UniLegal LLC spoke to one group and I the other, with ten minutes to round up the proceedings. Unusually for me, I actually wrote down in advance what I intended to say, and I give it here as the finale to my series of articles about this excellent conference:

It is proper, at an occasion like this, to address by name or title all the most important people in the room. There are many of you and I have only ten minutes so I will instead simply address “Kind hosts and welcome guests”.

I should say that listening to speeches during lunch is one of my pet hates at these conferences – you have just got a good flow of conversation going and then have to break off and listen to someone speaking. I tried to get out of it by suggesting to Senior Assistant Registrar Yeong Zee Kin that an audience of this calibre does not need to be told what they have just heard, but he said it was proper and it is there in the programme. There is, perhaps fortunately, not much time, so I will pick what seemed to me to be the most lasting points. Read the rest of this entry »

Senior Master Whitaker raises the eDiscovery stakes for unprepared litigants

August 14, 2011

You are busy, I know, and here is another 3,000 words to read. I will repeat here at the top the paragraph with which this article ends, as a taster for what Master Whitaker said in his plenary session speech at the Singapore International Conference on Electronic Litigation.

If Master Whitaker’s opening premise was that businesses are concerned about the costs of discovery, the real concusion from what he said is this: however important the role of judges, whatever is provided as rules, practice directions and court guidance, and however good the technology becomes, the key lies with the clients, both in the way they keep – and destroy – their documents, and in how they select and instruct their lawyers.

Senior Master Whitaker’s talk was headed International Developments in Electronic Discovery. In introducing him, Nicholas Peacock of Herbert Smith referred to Master Whitaker’s other formal title, the Queen’s Remembrancer. That role, he reminded us, was established in 1154; how interesting, he said, that the oldest judicial post in England and Wales should now be at the “cutting edge of bringing technology into the law”.

It is conventional to be polite to your hosts on such occasions, but Master Whitaker clearly meant every word of his opening. Singapore, he said, was a member of a select club of jurisdictions requiring common-law discovery, and punches above its weight in electronic discovery, as appears both from its practice direction and from various decisions. He praised its “forward-looking Chief Justice” (see my post Opening a world class agenda at Singapore Electronic Litigation Conference for a report of the latter’s speech). “Majulah Singapura”, he said, this being Malay for “Onward Singapore”, the nation’s motto. He paid tribute to Senior Assistant Registrar Yeong Zee Kin for his part both in advancing the court processes in Singapore and for his role in organising the conference.

He was, he said, proud of the connection between the Queen’s Bench Division and Singapore which, he said, would continue for as long as he was Senior Master. Read the rest of this entry »

Lord Justice Jackson in Singapore: Piloting Civil Justice Reforms

August 11, 2011

The best judicial advocates of proportionate electronic discovery emphasise that, however significant the costs and other implications of discovery, they are but a part of a wider duty to make justice affordable. That duty is distributed – it lies with the judges charged with managing cases and those who devise the rules and procedures; it falls on lawyers and on their clients whose justice is at stake; it is part of the duty of government. Lord Justice Jackson touched on all these in a speech in Singapore which began with Plato and Aristotle and, precisely 45 minutes later, came back to them. The occasion was the International Conference on Electronic Litigation organised jointly by the Singapore Supreme Court and the Singapore Academy of Law.

I do not usually rush out reports of speeches on the day of their delivery, preferring a more leisurely approach with reflective comment. This is a straight transposition from my notes, with little critical or or analytical thought applied.

The evidence in Aristotle’s day, Sir Rupert said, fell within a manageable compass. The instant communications now critical to business were not a boon in all respects. They remain in permanent form to be studied by those with the time and motive, subjected to a full and painstaking analysis by lawyers, and generating “prodigious and sometimes terrifying costs”. Read the rest of this entry »

Time to take the next steps: a Hong Kong eDiscovery conference

June 26, 2011

Leaving aside Australian conferences, this was my fourth AsiaPac event. Two years ago, I co-chaired a conference for LexisNexis in Singapore. Shortly after that, Jeffrey Teh and others from LexisNexis set up InnoXcell to bring business events to the region. I did conferences with them last year in both Hong Kong and Singapore and was pleased to be asked back to Hong Kong for this week’s conference.

Here is a Twitter exchange between me and whoever tweets on behalf of @Exterro and @eDiscoveryGroup after the first day of the conference:

Me: Day 1 of eDiscovery conference in HK ends – a good day. Two sessions down and one on costs to go tomorrow

Exterro: How has that conference being going? Any ground-breaking stuff happening?

Me: That is not what to expect here – slow attrition is the target rather than breaking new ground

Exterro: Well then how is the slow attrition going? [He doesn’t give up, this one]

Me: Steadily and in the right direction

eDiscoveryGroup: “Steadily and in the right direction?” What direction are they headed?

Me: If I’d known I would provoke an inquisition from all corners I’d have kept my trap shut. My report will follow.

So here is that report. “Steadily and in the right direction”, as used in my tweet, has its plain English meaning – nothing dramatic has happened in Hong Kong in e-Discovery terms since I was last here, but there is interest from a wider range of companies and lawyers provoked by much the same pressures as arise elsewhere. As with everywhere else, we need to move on from “What is native format?” to “How can I best reach my client’s objective?”. Read the rest of this entry »

Australian Discovery Report stresses Case Management, Consistency and Understanding

June 12, 2011

The Australian Law Reform Commission published its final report Managing Discovery: Discovery of Documents in Federal Courts at the end of May. The net effect of the recommendations is conveniently set out in the final issue of the ALRC’s Discovery e-News:

The ALRC believes that the net effect of its recommendations will be that:

  • judicial officers are encouraged and supported in their role as robust case managers;
  • parties and practitioners will have a clearer understanding of what is expected of them in relation to discovery obligations;
  • the scope of discovery will be defined more clearly and in the context of an understanding of how information is stored and can be accessed; and
  • the clarity of expectations and certainty in obligations will help to maintain proportionality in discovery costs.

The Final Report runs to 384 pages and there is a convenient Summary Report which, at 28 pages, carries the main points of interest.

The key themes on page 10 of the summary will be recognisable to anyone interested in this area:

  • while the reform trajectory in the Court was applauded, there were inconsistencies in practice across the bench;
  • robust judicial case management is critical in facilitating the resolution of disputes in the Court;
  • rigid rules of general application impose unwanted restrictions on judicial discretion;
  • expectations of parties in the Court are not always clear—uncertainties that lead to inconsistency of practice and potentially an increase in costs; and
  • there is an uneasy tension between the time and money that discovery can involve and the right of parties for a reasonable opportunity to present their case. Read the rest of this entry »

UK Government bids for a world-class legal reputation whilst neglecting the basics back home

May 27, 2011

MoJ paper - Plan for growthThe UK Ministry of Justice has launched a paper called Plan for Growth: Promoting the UK’s Legal Services Sector. The opening, at least, is admirably crisp for a civil service document:

It identifies the law as one of Britain’s strengths….

People turn to us because they know they will find world class, highly specialised practitioners and expert judges in the specialist courts. They understand that a decision from a court in the UK carries a global guarantee of impartiality, integrity and enforceability.

…. which is a major contributor to the economy….

These strengths help to explain why the Legal Services sector generated £23.1 billion or 1.8% of the UK’s gross domestic product in 2009 and constituted £3.2 billion in exports – nearly three times more than a decade earlier.

….but which faces competition:

…worldwide competition for legal services is set to intensify over the coming decade. New York, Stockholm, Paris, Geneva, Dubai, Singapore and Hong Kong all stand ready to compete with London and other UK jurisdictions as a hub of legal expertise. While the UK’s excellence and reputation is undoubted, costs and speed may affect where companies choose to resolve their disputes. We intend to do all we can to protect our competitiveness and build on our success.

Steps are to be taken as part of the Government’s Plan for Growth…

the Ministry of Justice is committed to working closely with UK Trade & Investment and the sector to promote the UK as the global centre of legal arbitration and commercial law services.

As part of this we have a fine new Commercial Court building:

Dedicated, high-spec business court under one roof – the Rolls Building brings together the Chancery Division, Technology and Construction Court and Commercial Court under one roof, offering a streamlined service to businesses and maintaining the UK’s reputation as first choice for business law. Read the rest of this entry »

Craig Ball Entertains at CEIC 2011 on Computer Forensics for Lawyers

May 23, 2011

I choose my words carefully when I write, and nowhere more than in the headings to articles. It took me 10 seconds to decide that the word “entertains” would form part of the heading to this post. “Entertains”, “Forensics” and “Lawyers” might appear to be mutually exclusive terms. Add the fact that Craig Ball’s session lasted for two and a half hours across lunchtime on a sunny Sunday in Orlando, the entertainments capital of the world, and you would think it remarkable that anyone could hold a large audience. Craig pulled it off.

Craig BallThe venue was CEIC 2011 or the Computer Enterprise and Investigations Conference to give its full name. The title of Craig’s session was Nerdy Things Lawyers Need to Know About Computer Forensics and a Few Nerdy Things Forensics People Need to Know About the Law. I have pages of notes, but I do not intend to summarise the whole thing. A few points will give you the flavour of it.

Many important things are very dull, and the standard recitals of information volumes – how many Gb per typical user and what that converts to in paper for example – is one of them. Here is one to grab your attention: take every word you ever read, every piece of evidence you have seen, and every phone book, cereal box, and road sign; add the text of every conversation in which you have taken part, the lyrics of every song you have ever heard and the script of every movie or television series you have seen. All that would fit on the smallest hard drive you could buy, with room to spare. Other media forms add volume – we are constantly photographed, and financial transactions are tracked; GPS allows our movements to be traced, and all this is in addition to information which we choose to publish about ourselves on FaceBook or whatever. Read the rest of this entry »

E-disclosure Great Debate at The Lawyer

March 21, 2011

The Lawyer today carries a report by editor Catrin Griffiths of an edisclosure  panel last week hosted by The Lawyer as part of a series of such debates. The panel included Senior Master Whitaker, Phil Beckett of Navigant, and senior representatives of the three main interest groups – a solicitor, a barrister and an in-house lawyer. Unsurprisingly, a panel of this calibre on this subject drew an audience of 70 lawyers.

I will take two points out of what is already a succinct summary of an hour-long discussion. Master Whitaker said this:

“It’s important for a human to review the volumes of data being produced. Predictive coding software doesn’t review documents, it ranks them [by] how it’s been taught to search for them. Nobody can be certain that there won’t be documents left over, but you have to take that risk.

The point bears repeating, and Master Whitaker takes every opportunity to do just that. No one is suggesting that lawyers give disclosure of documents they have not reviewed. The point of predictive coding and other technology aids is to weed out those documents which one might safely assume will not be disclosable in circumstances where, as Phil Beckett put it, the paper equivalent of some electronic sources can be measured in ESBs (heights equivalent to the Empire State Building).

That inevitably raises the question: what does “safely” mean? Geoff Nicholas of Freshfields is quoted as saying:

“It’s a journey. We’ll use predictive coding when we’re sure it works. We looked at that option with a number of providers and we and our clients were not confident it was currently adequate.”

Jonathan Bellamy of 39 Essex Street added this:

“Most decision-making tribunals are wedded to the idea of human judgement and they’ll need persuading that predictive coding works.”

Is this right? I do not believe that many courts or tribunals get involved in the evaluation of software applications – indeed, I would love to have some information, however anecdotal, which suggests that they do. What they ought to do is press the lawyers for information as to the costs, benefits and risks of reasonable alternative ways of tackling the problem and then take a view, if the parties cannot agree, on the most proportionate way forward. Read the rest of this entry »

Aggressive Transparency and Strategic Cooperation in Electronic Disclosure

March 16, 2011

Lieutenant Schrank: You hoodlums don’t own these streets. And I’ve had all the rough-house I can put up with around here. You want to kill each other? Kill each other, but you ain’t gonna do it on my beat. … So that means you’re gonna start makin’ nice with the PRs [Puerto Ricans] from now on. I said nice – GET IT! ‘Cause if you don’t, and I catch any of ya doing any more brawlin’ in my territory, I’m gonna personally beat the living crud out of each and every one of yas and see that you go to the can and rot there.

Riff: Now, protocality calls for a war council between us and the Sharks, to set the whole thing up. So I would personally give the bad news to Bernardo.
Gee-Tar: Where you gonna find Bernardo?

Baby John: It ain’t safe to go into PR territory.

Riff: He’ll be at the dance tonight at the gym.

A-rab: Yeah, but the gym’s neutral territory.

Riff: A-rab. I’m gonna make nice with him! I’m only gonna challenge him.

You will recognise the lines from West Side Story. They are clearly a parable – Schrank is the judge and Riff is preparing for a case management conference with Bernardo, as protocality (otherwise known as the Practice Direction) requires. Can you “make nice” with your opponent and yet challenge him?

In my account of LegalTech, I mentioned a panel led by Laura Kibbe of Epiq Systems whose participants included the UK’s Senior Master Whitaker, US Magistrate Judge Andrew Peck and ediscovery specialist partner David Kessler from Fulbright and Jaworski. I said this of it:

An animated discussion arose during this session about the conflict between co-operation to minimise over-disclosure (on the one hand) and the risk of showing more of your hand than you intend (on the other) with the judges in one corner and the terrier litigator David Kessler of Fulbright & Jaworski in the other. The discussion deserves more space than I can give it here, and I will come back to this.

The principles at issue here apply equally in a US and a UK context. The UK 1999 Civil Procedure Rules were founded expressly on a “cards on the table” approach, and the co-operation duty is both implicit and expressed in the e-disclosure Practice Direction 31B. Rule 26 (f) of The US Federal Rules of Civil Procedure is its parallel. Many lawyers on both sides of the Atlantic find it counter-intuitive (read “treacherous”) to have any co-operative discussions at all. My favourite judicial quotation in this context is the one which says that “co-operation is not all sitting round the camp-fire singing Kumbaya”. Browning Marean of DLA Piper US captures the same spirit with two neat phrases “strategic cooperation” and “aggressive transparency”.

Although I look at this subject with a bias towards the UK rules in this post, much of what arises transcends jurisdictional differences. My premise is that we can only manage electronic disclosure proportionately (meaning, in this context, at a price the clients are willing and able to pay) if we require or persuade the lawyers to try and reach agreement on the scope of disclosure/discovery. Litigation is inherently a contentious process but we need, where possible, to separate the fighting over the facts and issues from the mechanics of disclosure. I include the words “where possible” because it has to be recognised that there are cases where the parties are never going to agree about anything and where the costs seem to them to be irrelevant. It is for the court to manage that, and to punish those who use the disclosure obligations as a weapon. Read the rest of this entry »

Davis v Grant Park – EDiscovery Sanctions just like the Advantage Rule in Rugby

February 23, 2011

I am keen on parallels and analogies which help illustrate serious subjects by drawing on historical, fictional,  cultural or any other references which may throw light on (or at least help us to remember) things we ought to know. The brief summary of US Magistrate Judge Facciola’s opinion in Davis v Grant Park on the Gibbons E-Discovery Law Alert made me think immediately of the rules of Rugby Union. There are parallels between the penalties in court and on the rugby pitch, and a side-wind brings me an Australian connection which fits my theme.

I have talked about rugby before, on the occasion of an enjoyable day out as a guest of FTI at the Varsity Match in December. That article prompted Kate Holmes of FTI to ask me on Twitter to explain the rules of rugby, an invitation I declined on the grounds that 140 characters would barely get me started. I am not really qualified anyway to expound upon the rules, but one that I do know is the Advantage Rule. I will come back to that, and its relevance to Davis v Grant Park in a moment.

The full title to the Gibbons summary is Davis v Grant Park holds that sanctions motions for breach of duty to preserve electronic communications are premature until the close of discovery. Judge Facciola refused a motion for sanctions for the alleged destruction of electronic communications finding it “premature to consider the question of sanctions until discovery ends and the court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused”. Judge Facciola cited his own decision in D’Onofrio v SFX Sports Group, Inc., where he said:

“[i]t is only after establishing the prejudice the plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent with this Circuit’s insistence that any sanctions imposed be a function of the prejudice done to a party by its offending opponent.”

I have written before about the non-US perception of ediscovery sanctions, most recently in an article called The ups and downs of US ediscovery sanctions. I said there that “To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime”, whilst cross-referring to an earlier article which made it clear (I hope) that I was alert both to the rationale behind sanctions in appropriate cases and to the fact that (as Judge Facciola himself put it in a conference speech) judges do not wake up every morning asking “Who shall I sanction today”. For all that balance and fairness, however, the outsider’s perception is that the fear of sanctions, and particularly sanctions which are disproportionate to both the offence and the prejudice, drive up the scope, and therefore the cost, of electronic discovery. D’Onofrio and Davis v Grant Park are welcome correctives to this. Read the rest of this entry »

Levelling out after LegalTech

February 22, 2011

LegalTech, UK educational sessions and calls from law firms, an LPO conference, Irish eDiscovery, litigation as an invisible export, legal blogging in New York and eDiscovery in Germany all help to pass the time.

By and large, I find that the amount of work which has to be done in a year broadly matches the time available to do it. That is in part thanks to variables which I can control – the things I choose to write about as opposed to those which I must cover, and whether I go to bed at 2.00am or 3.00am – and is explained in part by a variant on Parkinson’s Law. That, you will recall, says that “work expands so as to fill the time available for its completion”. One way of defeating that is to leave important things until the last minute, ticking off the non-urgent things (which would otherwise never get done) so that the time available for completion of the urgent things is reduced. It infuriates conference organisers (for whom everything is apparently needed TODAY) but if I dropped everything to comply with their deadlines, I would never get anything done.

Sometimes, however, tasks stack up like aeroplanes at dawn over Heathrow (an example I pick with particular feeling after my last aimless circling of the Home Counties). February is invariably one of those times, thanks to the cuckoo which is LegalTech. Its three days always take at least two weeks of my life in preparing for sessions, getting there, being there and writing about it afterwards. The result is an uneven spread in my articles – I wrote six in one day just before I left but only two in the ten days after my return. I get bullied, you know. It took a while to do my report on LegalTech and, just before I published it, I received an e-mail saying “I sense some collective thumb-twiddling amongst your readers – the biggest show in town has come and gone and the site is still welcoming Digital Reef etc” (a reference to the last post which I did before I left, about new e-Disclosure Information Project sponsor Digital Reef). It is some consolation to find that Andrew Haslam has only just published his account.

It is worth, occasionally, just running through what is happening, to show how many subjects get swept together under the umbrella of electronic disclosure. It touches on a lot of topics, as the extract below from my slide set shows. I do not disdain PowerPoint, as has become fashionable, and use my slides at educational sessions to allow me to canter over the ground more or less without taking breath – the audience can always ask me back for expansion on discrete subjects.

edisclosure-related subjects Read the rest of this entry »

Lord Justice Jackson fights for his costs reforms

January 21, 2011

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.


Strong UK presence at LegalTech 2011

January 10, 2011

LegalTech 2011 is only a few days away and the programme is packed. Almost everyone whose name has appeared in these pages is taking part in something, and I will not attempt to list them all. Following on, however, from my recent piece about the Georgetown Advanced e-Discovery Institute (see International discovery, sanctions, ethics and US-UK comparisons at Georgetown) and the growing mutual interest in US e-Discovery and UK e-Disclosure, I thought it worth drawing your attention to the sessions involving UK participants. If I have missed any, please let me know.

Epiq Systems have two panels involving well-known UK participants. Greg Wildisen of Epiq moderates a panel called Navigating the Challenges of Cross-Border Regulatory Investigations with panelists including Professor Dominic Regan and David Cracknell of Slaughter and May’s London office. That is followed by a panel called Managing a Global Review while Minimising Risk moderated by Laura Kibbe of Epiq. The panelists include Senior Master Whitaker and Neil Mirchandani of Hogan Lovells in London. Non-UK participants known to readers of this blog include US Magistrate Judge Andrew Peck (who has teamed up with Master Whitaker in various jurisdictions, including Brussels and Hong Kong), and David Kessler who has recently moved to become Co-Head of E-Discovery at Fulbright & Jaworski – an entertaining and informative fellow, David, as I discovered to my relief when he was on a LegalTech panel which I moderated for Epiq last year (I say “relief” because it can be an interesting business, moderating panels of people you have never met before). Anyone interested in global and cross-border matters should attend these sessions.

Andrew Szczech of Kroll OnTrack UK takes part in a panel called Trends in Social Media and Cloud Computing. Jan Durant, IT Director of Lewis Silkin is on a panel called Business Processes Utilising SharePoint. Alex Dunstan-Lee of KPMG in London is doing a session called The Clearwell E-Discovery Platform: did you know? UK solicitor Mark Ross, VP legal solutions at Integreon, is covering Legal Process Outsourcing: Ethical, Practical and Legislative Considerations.

Apart from the UK, the non-US world is represented by Michelle Mahoney, Director of Applied Legal Technology at Mallesons Stephen Jaques in Australia, talking about the Intersection of Project Management and Practice Support. She was anointed Practice Management Champion at ILTA last year, so knows what she is talking about. Read the rest of this entry »

Big cases coming for big firms – but what about more ordinary litigation?

January 7, 2011

An article in the Lawyer of 3 January is headed Top firms gear up for action as litigation tsunami hits UK . Perhaps the most interesting point made in it concerns the cost of arbitration with the corollary that the court seems still to be the most attractive option, at least for bigger cases.

As its headline makes clear, the article largely concerns a list of very big cases due for hearing in 2011. What about more “ordinary” commercial litigation, the kind with hundreds of thousands or tens of thousands of pounds at stake rather than millions? The article’s premises – that companies have “exhausted more amenable avenues” for resolving disputes, that they must fight because they cannot afford to settle, and that they are “turning their backs on the arbitration process” almost certainly apply further down the scale. The government has promised a fresh drive to encourage mediation, but the target is primarily the smaller matters. Good legal advice appropriate to the dispute is expensive whatever the forum. No-one is knocking the idea that mediation is the right approach for many cases, but the focus should be on improving the court processes, not on driving litigants elsewhere.

Many companies seem to prefer to litigate – or would do if the costs were reduced or at least made more predictable. Lord Justice Jackson drew attention to the importance of certainty, not just as to the outcome but also as to the costs implications. The lawyers who will win business – by beating their rivals but also by encouraging companies to use the courts – are those who are best able to predict costs and keep within their estimates. Read the rest of this entry »

Richard Susskind’s law firm technology predictions for 2011

January 4, 2011

A short interview with Professor Richard Susskind on the Legal IT web site gives a packed 12 minutes or so which is well worth listening to at the beginning of the year. E-Disclosure is covered along with iPads, social media, the cloud and outsourcing as areas in which the gap between those who look forward and those who drag their heels will differentiate one firm from another in business practices, in the eyes of the clients, and in profitablility.

Before you dismiss what Richard says as fanciful, you may care to think back to his record as a predictor of legal business practice – how, for example, everyone laughed when he said that firms would communicate with each other and with clients by e-mail, or would publish legal information for free on their websites.

His four main predictions are:

1. There will be wider take-up of the iPad and other tablets, particularly when Word and PowerPoint become available on them. Lawyers are already using them for many daily activities both at home and at work, as are their clients, and mainstream acceptance cannot be stopped.

2. Many firms will move their data and processing to the cloud. Confidentiality concerns are being addressed and, in any event, it is probable that a first-rate outsource provider will offer better security than many firms can provide for themselves. This applies to litigation as much as to other things – much litigation data is either price-sensitive or very personal; how many firms can say in a post-WikiLeaks world that they are truly confident of their own security?

3. There will be an increase in outsourcing, with whole systems, not merely data, passed to third-party providers. This is not necessarily bad news for IT staff who may find more interesting challenges (and less aggravation) if they transfer their employment out of law firms.

4. There will be an uptake in the use of social media as firms make use of LinkedIn, FaceBook and Twitter for legal purposes, as many companies – the clients – are already doing, to tell the world what they are doing, planning or thinking. This is so predictable a development that firms must get policies in place in anticipation of it. Without them they will either get left behind by more adventurous firms or will embark on the use of social media without thinking through either the risks or social media’s place in their wider public-facing plans. Read the rest of this entry »

Thomson Reuters 6th eDisclosure Forum in London

November 24, 2010

It is Friday night as I start writing this. I am in BA’s lounge at Washington Dulles Airport after the two-day Georgetown Advanced eDiscovery Institute. There I took part in an international panel, talked and/or listened to the Who’s Who of US ediscovery including a dozen judges, and heard much that was thoughtful and interesting. Comparisons with the UK were inevitable, both those which were expressed in the sessions and those which crossed my mind as I talked and listened. No one is keeping the score, but I think we ended up about even.

First things fiBrowning Mareanrst. The week began with a conference in London, the Thomson Reuters 6th Annual eDisclosure Forum co-chaired by Browning Marean of DLA Piper US, George Socha and me. Three of us took part in panels at both conferences – Browning Marean, Laura Kibbe of Epiq Systems and me. As you will see from my report of Georgetown, there is increasing crossover between the US and the UK in relation to electronic disclosure / discovery. This may seem obvious – we are all facing the same problems, and suppliers like Epiq are active in both – but the gap is narrowing as we move from dismissal of each other’s approach to a greater willingness to listen to what is being said on the other side of the Atlantic.

The speakers included 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. The audience included several in-house litigation support managers, some suppliers, and lawyers from firms and government, many of them introduced from in-house sessions which I do around the country. My role is to introduce all these players to each other, and in opening the conference I began by asking the audience members to speak to someone whom they did not know. The resulting hubbub was gratifying, and I will do this again. Read the rest of this entry »

Consultation paper on Discovery in Australian Federal Courts

November 16, 2010

If Lord Justice Jackson’s review of Civil Litigation Costs included the most important summary of disclosure and e-disclosure of 2010, the Australian Law Reform Commission’s Discovery Review will be the key analysis of 2011. The Attorney General’s terms of reference attracted my attention because of the reiterated phrase “as early as possible”, which seems the right priority for all jurisdictions which require discovery of documents.

The ALRC has now published a Consultation Paper. The closing date for submissions is Wednesday 19 January 2011. So far, I have skimmed it rather than read it in my short gap this week between conferences in London and in Washington. My quick skim was sufficient to see that there is much useful thinking in it and I look forward to reading it properly on the plane.

I did, however, pick up two references in it to things which I have written. One of them, read out of its context, has the potential to misrepresent my views in much the same way as a few carefully chosen words from a play review on a theatre billboard can subvert the original sense. I stand by the quotation, but its words were something I had set up in order to knock them down, not my own opinion. Read the rest of this entry »

Two podcasts and a video on electronic disclosure

November 16, 2010

I have done two podcasts and a video recently which you may find a painless way of absorbing information about electronic disclosure.

I was interviewed last week by Karl Schieneman of ESIBytes earlier this week, on an introduction from Mike Taylor of I-Lit. The interview was given the title E-Discovery Versus E-Disclosure – How The English Handle E-Discovery.

We covered, amongst other things:

  • my emphasis on technology as an adjunct to the brain, rather than vice versa
  • the new UK Practice Direction and Electronic Documents Questionnaire
  • the difference between an approach which collects everything and then seeks the things which matter versus the approach in Goodale v Ministry of Justice which focuses from the outset on the things which matter and work outwards from there if necessary
  • the pressure which US-style spoliation threats gives to maximise discovery
  • the value of predictive coding and other technical aids and the impetus which Goodale (again) gives to adopt this approach
  • the alleged “gold standard” of manual review (and its advantages in terms of billable hours, if not of proportionality)
  • the importance of cooperation
  • the need for education of both lawyers and judges.

Inevitably (this being a US interview), we turned to the conflict between the US demands for documents and EU privacy and data protection laws. In this area, as in others, the more focused the original scope of disclosure / discovery, the less work than there is to do in identifying and, if necessary, redacting, private (or privileged) information. Read the rest of this entry »

Berezovsky v Abramovich – refusal of enhanced disclosure order in the Commercial Court

October 31, 2010

A decision about edisclosure made in the Commercial Court by Mrs Justice Gloster DBE in August has recently been published on BAILII. The case is Berezovsky v Abramovich , the pleaded sum at stake exceeds US$3.5 billion, and the allegations made by both parties are serious ones of dishonesty and impropriety. The application was made before standard disclosure had taken place for what is variously called “train of enquiry” or “Peruvian Guano” disclosure, referred to by the judge as “enhanced disclosure”. No formal application was in fact made and no evidence was filed either in support or in answer. It seems unlikely that the judge would have reached a different conclusion if such evidence had been before her, although her rejection of the application was based in part on its lack of particularity.

The judge did, however, helpfully set out the sort of evidence which a court might expect on such applications, namely:

  • i) what documents or categories of documents might be regarded as liable to be searched for, or disclosable, in accordance with standard disclosure procedures;
  • ii) what wider or different categories of document would have to be searched for if an order for enhanced disclosure were to be made;
  • iii) any indication as to the nature of the searches that would have to be carried out, or the extent of the relevant universe of documents, if an enhanced order were made, or the difficulties, if any, that the conduct of such a search would impose on the parties; and
  • iv) any indication of what inquiries, in relation to which issues, such an order for disclosure would require.

The judgment is short and I will leave you to read the arguments for yourself. The key points, to my eye, include the following: Read the rest of this entry »

Lessons from Applied Discovery Proportionality panel in Toronto

October 31, 2010

It sounds a bit flippant to say that I went to Toronto for breakfast. It certainly would not do as an answer to the immigration official asking the purpose of my visit. Readers with long memories may recall two earlier occasions when I nearly made it to Canada and failed. Since then, I have been back to Australia, and spoken in Singapore and Hong Kong, leaving Canada as a big gap in my close-up view of the common law jurisdictions which require discovery of documents in litigation (the other gap is New Zealand, which I hope to remedy soon). I jumped at the chance when Applied Discovery invited me to a breakfast panel session in Toronto called Understanding Proportionality.

Canadian flag and CN TowerThe moderator was Crystal O’Donnell of Applied Discovery, whose white paper entitled Proportionate Litigation was launched at the event. What you need to know from that, by way of introduction, is the new Rule 1.04 s 1.1 which took effect on 1 January and which says this:

In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

If you are tempted to think that this is just a statement of the obvious, you may care to read the 17 pages which Lord Justice Jackson devoted to the subject of proportionality in his Final Report on Litigation Costs starting at page 27. He says this (at paragraph 5.16) à propos his proposed changes to the UK rules:

“The rules should also provide that the fact that costs were necessarily incurred does not make them proportionate. This should be stated explicitly….”.

Once you see a distinction between costs “reasonably incurred” and those which are “proportionate” you see more to proportionality than merely being reasonable.

Crystal O’Donnell had assembled a first-rate panel. Master Calum MacLeod of the Ontario Superior Court of Justice occupies a position as judicial thought-leader equivalent to that of Master Whitaker in the UK. Kelly Friedman of Ogilvy Renault is Chair of Sedona Canada. Susan Nickle is from Wortzman Nickle a specialist ediscovery practice which describes itself as “the go-to law firm in Canada, assisting corporations and their counsel to find practical ways to meet their ediscovery obligations”.

One of the themes running through the session was the need to find the “golden nuggets”. I propose to adopt the same approach to reporting on the session, picking out, without attribution, the passages with the widest general application. Unsurprisingly, they are ones which recur in every relevant jurisdiction. Read the rest of this entry »

A quick eDiscovery trip to Singapore

October 29, 2010

I got back at dawn this morning from the InnoXcell eDiscovery conference in Singapore. I was only there for the two days of the conference and had only just got back from a one day trip to Toronto to attend Applied Discovery’s breakfast seminar on proportionality. My notes about both will follow, together with a catch-up on what else has been happening. The eDiscovery / eDisclosure world is simultaneously expanding and getting smaller.

In discovery as in so many other things, it is often easier to get the hard things right whilst overlooking the easy ones. In the UK Shoesmith case, for example, the documents overlooked by OFSTED lay in a clearly-labelled folder in someone’s My Documents. One of the speakers at Applied Discovery’s session in Toronto last week drew a distinction between things which can be remedied, albeit at some expense, and things which cannot be put right once the critical moment has passed.

I feel much the same about the planning for some of my foreign trips. The hard things involve rounding up panels, preparing slides, organising flights and hotels, and making sure I take all the files and equipment needed to keep working whilst I am away. Inevitably one overlooks something easy – chargers are an obvious example, and I once discovered that a visa was required only when checking in at the airport. Things like this can usually be put right. This is the first time, however, that I have set off without the only thing which is actually irreplaceable – my passport.  What could be easier to remember or to pick up? My son got it to me in time.

Someone once coined a word to describe a place so attractive and accessible that everyone goes there, so making it neither attractive nor accessible. I cannot now remember what the word is, but I have discovered an equivalent concept in preparing to go away – the work needed to pack everything for working on a long flight is so knackering that you fall asleep on the plane and do none of it. I set off with laptop and iPad loaded with sources of articles and draft papers to write, and then slept from Berlin to Burma. There was not much catch-up time on in the 48 hours which separated my arrival in Singapore and my departure. Read the rest of this entry »

Roundup of The Masters Conference 2010

October 11, 2010

“We have been travelling since we saw you last. We have been in America, entertaining the Americans whose need, let’s face it, is greater even than yours. Of course when we’re over there we say that the other way round”

That is how Michael Flanders opened Flanders & Swann’s second selection of comic songs At the Drop of Another Hat in London in 1963. They seem successfully to have crossed the Atlantic divide despite a style which was rooted so firmly in English traditions of education and culture that it more or less excluded the Welsh, Irish and Scotch; the verses to their Song of Patriotic Prejudice – “The English are best” (lyrics and video) would today bring complaints from some humourless official who would investigate it as incitement to racial hatred and arrange a compulsory diversity course. Fashions change in these things – has Hollywood at last given up casting a well-spoken Englishman as the villain in every film? The devolution of powers within the UK, the subservience to Europe which culminated in the Treaty of Lisbon, and Blair’s shameful grovelling to Bush have left us without influence in areas which we used to dominate. Perhaps that is why I am so keen that we should be heard in my own field.

I am just back from Washington, where Master Whitaker and I flew the English and Welsh (but not Scottish or Irish) edisclosure/ediscovery flag at the Masters Conference.  We were joined by an Australian judge, Justice Einstein, of the Commercial List in the Supreme Court of New South Wales.  I am not sure that anyone in the US would have been interested two or three years ago. Before then, as I said in opening my International Judicial Panel, US judges would come to London to tell us, in a rather de haut en bas way, how we should be handling electronic discovery, and English lawyers and judges reacted by disdaining the whole subject. The tide turned with a judicial panel which I organised with Guidance Software in 2008, when we put Judge Grimm and Judge Facciola from the US on a panel with Master Whitaker and HHJ Simon Brown QC from the UK. Since then, we have tapped into and shared not just each other’s thinking, but the developments in other common law jurisdictions; bringing Justice Einstein from Australia to a US platform marked a further step towards pooling judicial thought on this shared problem.

The Masters Conference has grown over the same period to be a very good forum for just this level of thinking. It is big enough to attract a good range of speakers, delegates and sponsors; it is thoughtful without being overbearingly intellectual; the mix of law, technology and practicality is about right; it recognises the importance of local interests without forgetting that there is a wider world out there which is important to US interests both as a market and as a source of ideas.

I give a brief account of the sessions which I attended – I usually do separate posts about individual sessions, but there were thematic links running through them which then would be lost. Read the rest of this entry »

London litigation support party coincides with eDisclosure Practice Direction launch

October 1, 2010

I believe that it was a coincidence that almost the entire UK litigation support industry gathered at the Larder in Clerkenwell on the evening before eDisclosure Practice Direction 31B passed into the rules. I do not mean that the presence of dozens of  EDD people in one pub simultaneously was the result of random chance – Bill Onwusah of Hogan Lovells and Jack Bond of Dewey & LeBoeuf fixed the venue and sent out the invitations at about the same time last year. What I mean is that the date was not fixed with the PD’s launch in mind.

The PD was, nevertheless, a recurring topic of conversation, as you might expect. Most of those present were busy and had been increasingly so for some time – as you know, I like to see the whites of their eyes when they are asked how business is going, and I believe that there is plenty of work around. I don’t think this is directly related to the practice direction – that (as I keep saying) is a reaction to the existence of electronic documents, not the cause of them. It is generally felt that the PD will encourage more people to handle their clients’ electronic documents electronically, but that it is because it has engendered more knowledge about cost-effective ways of doing the job, not because it is driving lawyers to do it against their better judgement just because that is what the court expects.

There are a few like that, of course, and I heard reports last night of lawyers muttering about more upfront burdens. I have come across at least two people who carry a copy of my article Over-estimating both costs and risks in the eDisclosure Practice Direction to hand over when this argument is heard. That is what I wrote it for. Read the rest of this entry »

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

September 28, 2010

There is a general sense that the eDisclosure Practice Direction has broad acceptance amongst lawyers – those who have read it before commenting on it, anyway. It is not just another CPR burden, nor is it something to fear – whatever you may hear from scaremongers with an interest in making it seem so.

I do not need to declare my interest in the success of the eDisclosure Practice Direction and its Electronic Documents Questionnaire. I helped draft it and have advocated its principles – of informed co-operation as a pre-requisite for proportionate disclosure – for years. It is good then to report that the initial reactions from lawyers seem to be favourable, even amongst those who accept that there are challenges. Most recognise that the challenges derive from the existence of the electronic documents, not from the measures being taken to control them.

We need to know, in due course, how it works out in practice. Meanwhile, it is worth drawing attention to two wholly predictable reactions which emerged within a few days of publication. The first is properly the subject of debate, though that debate will be more valuable when the proponents on each side have some experience of working with the PD, or have at least run their eyes down its main provisions. The second may appear a matter of nuance, but it is a nuance which matters. The common element is an interest in making the implications of the PD sound more alarming than they are.

I am referring to:

  • The exaggeration by some lawyers of the new burdens allegedly imposed by compliance with the E-disclosure obligations in the rules
  • A similar exaggeration by some technology providers of the same burdens, shading the useful “we can help” into the less useful “you have to involve us to do the job properly”.

Whether the dominant motive is the overriding objective or increasing your profits (and both are perfectly respectable drivers) these exaggerated reactions turn the end user (the lawyers from the perspective of the technology provider and the clients who can choose not to litigate if the system seems inimical to cost-effective litigation) against the whole subject. Let’s debate this by all means, but let’s start by looking at what the obligations actually add up to. Our sources are the documents themselves, the eDisclosure Practice Direction and the Electronic Documents Questionnaire. Read the rest of this entry »

E-Disclosure and E-Discovery at home and abroad

September 14, 2010

I have given my first law firm talks since the Edisclosure Practice Direction became official and have started talking to my sponsors about its implications for them – the questionnaire gives them a useful and early role, if they are ready to give help to lawyers who need it; the speakers for my international judicial panel for the Masters Conference in October are booked; other autumn conference plans are moving forward. The new season is well under way.

I will come on to these things in a moment, including a quick digest of some points from the PD which may not be immediately obvious. They are not the only reason why there has been a gap since my last article: I have been off on my summer holidays – well, it was a long weekend really, and not that long, just half a day tacked onto a weekend before I had to get back for an interview. Maybe next year.

Orford Castle and ChurchMasts at OrfordPagodas at OrfordWe have been at my mother’s house at Orford on the Suffolk coast.  The word “defensibility” means something rather more tangible in Orford than it means in ediscovery.  Orford Castle was built between 1165 and 1173 and its keep dominates the skyline still. On Orford Ness, a narrow strip of land between the River Alde and the sea, secret military tests were conducted from the 1930s onwards, first on radar and later on cold war weaponry, for which purpose the curious Pagodas were built. It was also the home of a post-war over-the-horizon radar station for an Anglo-American system called Cobra Mist, abandoned in 1973. Orford Ness lighthouse may have been the source of the lights reported in the 1980 Rendlesham Forest UFO sightings, and attributed at the time to triangular flying objects – the only known example of someone demonstrating their technology and not following it up with a sales call.

This was a brief hiatus before activity picks up on both domestic ediscloure and international ediscovery. The UK’s Edisclosure Practice Direction comes into force on 1 October, and I have given my first law firm talks on the subject to one of those good regional firms which, I have suggested, have everything to play for in document-heavy litigation. That type of work used to require large teams and other resources available only to the biggest firms. The practice direction should see an end to the “brute force and ignorance” approach to edisclosure; the cudgel should give way to the stiletto, as firms learn to use the rules and the technology to narrow the disclosed documents as early as possible down to those which matter or which matter most. The practice direction requires [paragraph 6 (2)] that technology should be used in order to ensure that document management activities are undertaken efficiently and effectively. You do not need to be a big firm to handle large volumes, just aware of the tools which exist and (just as importantly) how to use the rules and the cases to meet the clients’ objective – which is not usually disclosure for its own sake. Read the rest of this entry »

Mrs Justice Gloster on disclosure of documents in the Commercial Court

September 6, 2010

If you wade through all the sex and celebs, fashion, make-up and gossip which comprise the bulk of The Times these days, you can occasionally still find good articles on legal matters, usually written by the excellent Frances Gibb. Their former influence has been diminished by the fact that the Times has disappeared behind a paywall – I express no view on that beyond mourning the former ability to point you to articles of interest.

An article of 2 September was headed Commercial Court goes modern with a woman head judge and new building which, as its title implies, was largely about the appointment of Mrs Justice Gloster as head of the Commercial Court and the imminent move of the Chancery, Commercial and Technology and Construction Courts to the new Rolls Building.

Mrs Justice Gloster has long been influential in case management matters. I once heard her describe  voluminous paper bundles as “counsel’s comfort blanket”. The whole Times article is an interesting one, so it is a pity that you cannot read it. I will, however, set out what it says about disclosure: Read the rest of this entry »

Inquiry blog – Discovery of Documents in Australian Federal Courts

September 6, 2010

An Inquiry into the law, practice and management of the discovery of documents in litigation before Australian Federal Courts was launched by the Attorney-General in May 2010. I wrote about it at the time (see Terms of Reference for Australian Discovery review), and see it as one of the most important pending developments in discovery (and therefore necessarily in electronic discovery / e-disclosure) in hand anywhere in the world at the moment. The other, of course, is the UK’s e-disclosure practice direction and electronic documents questionnaire which will take effect on 1 October 2010.

Masters Conference for legal professionalsThese two initiatives have significance, even for the US as it struggles with the implications, in time and in costs, of handling electronic documents proportionately. I am moderating a panel at the Masters Conference in Washington on 4 to 6 October which will consider these UK and Australian developments and will suggest that even the US has something to learn from them.

The duty of consulting and reporting on discovery falls on the Australian Law Reform Commission (ALRC). The ALRC has set up a blog called Discovery of Documents in Federal Courts to report on its progress, to raise subjects for discussion and to capture comments. The Attorney-General’s Terms of Reference can be found there; as I said in my original post, the reiterated use of the words “as early as possible” points the enquiry in what is obviously the right starting place. Read the rest of this entry »

The e-disclosure practice direction and electronic documents questionnaire in tangible form

August 31, 2010

Since I have been banging on about the “proposed” or “pending” edisclosure practice direction for months now, it is not surprising that everyone seemed to think that I would be the first to know when it had been formally published. I was nine days late in reporting its publication by the Ministry of Justice and, even then, did not point to a source for the official version.

To judge from the messages I have had since, some of you felt that this was as if King Aegeus had somehow failed to spot the sails of Theseus’s ship despite his long vigil on the Cape of Sounian.  One correspondent was “surprised” and another “amused” that the news had reached me via Twitter, as if I should  have been watching the MoJ web site night and day; perhaps they think that the Master of the Rolls would telephone me personally when the final signature landed on the parchment or whatever they print Statutory Instruments on these days.

The reality is that helping to draft these things gives you no special status when it comes to tracking their progress; indeed, like Aegeus, I did not know whether to expect black sails or white ones, which is why I said nothing concrete about the PD until I saw an announcement in official form (if you are lost by all this stuff about Greeks on cliffs and monochrome sails, by the way, Plutarch’s Theseus is a good read). Read the rest of this entry »

E-Disclosure Practice Direction and Electronic Documents Questionnaire – it is official

August 27, 2010

I have made many references over the last few months to the pending UK e-Disclosure practice direction and to the electronic documents questionnaire which is part of it. The more observant of you will have noticed that I have never actually said that it will come into force on 1 October 2010. Indeed, someone wrote to me only yesterday asking if I knew what had happened to it; my carefully-worded reply (quiet optimism qualified by the need to see an official announcement) led him to observe “your cautious response reminds me that once a lawyer, always a lawyer!”

Well, we do at last have the official announcement, on the Civil Procedure Rules section of the Ministry of Justice website.  I found out about it from Twitter, although the vision this brings of messages flying round cyberspace is rather undermined by the fact that the tweet was put up by Jonathan Maas of Ernst & Young, who was a only few yards away from me here at ILTA in Las Vegas. Read the rest of this entry »


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