Could an English court require lawyers to make a video about their disclosure obligations?

August 12, 2014

I recently wrote an article about the Court of Appeal’s decision in Denton which I called Letting the punishment fits the crime as Mitchell gives way to Denton. As the title implies, I suggested that Denton took us some of the way back to Lord Justice Jackson’s intentions and that the courts were now better able to exert discipline in a way which had regard to Jackson’s original intentions. I cited Gilbert & Sullivan’s Mikado as a model for the idea that the punishment should fit the crime.

A US judge has taken this one step further. Faced by a party whose conduct of eDiscovery involved taking every point and other activities which lost sight of the “just, speedy and inexpensive” requirement in Rule 1 of the Federal Rules of Civil Procedure, the judge focused on the value of educating the delinquent lawyers. He required them to make a video explaining the proper way to manage eDiscovery. The story is well told in this article from Above the Law which annexes the judge’s order and sets out the more quotable passages in the ruling.

One is a generalised complaint about the conduct of eDiscovery which is worth repeating. It reads:

Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught…. Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »

Letting the punishment fit the crime as Mitchell gives way to Denton

July 21, 2014

What was over in moments, added a word to the law’s dictionary, led to countless spin-off cases and applications, cost millions in legal fees, ended reputations and, having left its mark, disappeared from the scene?

There is are curious parallels between “Plebgate” and the judgment called “Mitchell”, either of which could be described in this way. The original incident, the only event with a “-gate” suffix which actually involved a gate, was over in seconds; Andrew Mitchell lost his Ministerial job, one policeman went to prison, others were disciplined and a rotten branch of policing was given a long-overdue shaking; at least two libel cases ensued and the whole consequent series of investigations and civil and criminal claims will keep many lawyers in claret for long after we have forgotten both Plebgate and Andrew Mitchell.

It took Lord Dyson a few minutes rather than seconds to deliver the Court of Appeal judgment known as “Mitchell”, and its consequences have been similar to Plebgate. Millions of pounds have been spent since, in complying with the regime which the judgment spawned, in arguments and applications resulting from it, and in bringing claims against lawyers whose every minor default became a cause of dispute. It is suggested that “Mitchell” was the last straw for some solicitors, already hard-pressed to break even. Court lists were flooded with Mitchell-related applications. A spirt of co-operation, or at least of give-and-take, between solicitors, which had always oiled the procedural wheels, disappeared in a new climate in which lawyers felt it their duty to take every point in case they could “Mitchell” their opponents, and cases which could have proceeded toward trial were delayed as the “Mitchell” point was contested; one involved a delay of 46 minutes in serving a list of documents. Read the rest of this entry »

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.


Mitchell and relief from sanctions under CPR 3.9 Part 2 – is Mitchell the last word?

January 6, 2014

This is the second of (at least) three sequential posts about different aspects of the Court of Appeal’s decision in Mitchell v NGN. The first was called Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy? and looked at the context in which this judgment is set. This one looks at the problems which the judgment gives and at some of the ideas which have been canvassed to mitigate its effect, not least as a result of some other judgments.

The preceding section is really aimed at those who seek a simple answer to a multi-layered and complex set of problems. Blaming Jackson lets us off having to think about the real issues here, as do easy blasts about right-wing conspiracies (and in case you missed the point, my references in that post to Blair, Brown and Balls were a deliberate descent into the sandpit of easy political name-calling. I mean every word, but it does not help us fix the problem in hand, which is the decision in Mitchell).

The problem, and one which Mitchell exacerbates (deliberately, so far as one can tell), is that there now appears no gap between damaging incompetence and the kind of oversight and inadvertence which any of us might commit, nor is any relevant distinction drawn between very big cases in specialist London courts and small ones in provincial county courts. Quite apart from any differences of scale, there is a reason why some judges get elevated to the Court of Appeal and others do not. Read the rest of this entry »

Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy?

January 3, 2014

One of the many advantages of not being a journalist is that I do not feel the need to react immediately when major developments occur. The news in November that the Court of Appeal, led by the Master of the Rolls, Lord Dyson, had upheld Master McCloud’s judgment in Andrew Mitchell v MGN prompted a flood of articles and comment ranging from the apocalyptic and apoplectic at one extreme to “What did you expect?” at the other.

If you missed it and want to hurry on to something else, the judgment’s narrow effect is that the failure by Mitchell’s solicitors to file a budget in time leaves him entitled to recover only his court fees if he wins; the wider effect, or so it seems, is affirmation of a policy requiring that any procedural defect except the most trivial is likely to result in severe sanctions which, actually or in practice, drive the defaulting party out of the court.

You might like to pause here and go and check the time limits on all your cases. As a rough guide, knock a day off every deadline just in case you miscalculated, treat every order as a peremptory order (see Gordon Exall’s Civil Litigation Brief on this as on anything to do with sanctions and deadlines), check whether the order says “exchange” or “serve on each other”, and make sure you don’t have square brackets in the wrong place in any document. Oh, and check your professional negligence policy. All done? Welcome back. Read the rest of this entry »

The end of an era: law firms, eDiscovery, Susskind, the year 1599, dinosaurs, and a yellow scooter

February 6, 2013

Sometimes one gets the sense of being tangibly at the end of an era – the door is closing and, perhaps, others are opening. I felt like that, quite suddenly, on my way to LegalTech in New York a few days ago as a result of the conjunction of three different sources. One of them involves the year 1599, the end of chivalry and the rise of a new merchant class, and another features dinosaurs and a yellow scooter. Those who have been with me a while are used to apparently random elements coming together in the last reel to reach an eDiscovery conclusion.

Richard Susskind’s Tomorrow’s Lawyers

The door which is closing will leave behind it the traditional law firm structure of partners selling at hourly rates the services of themselves and legions of  associates. There is nothing new in this prediction – Professor Richard Susskind has been making it for years, and one of my sources is his latest book, Tomorrow’s Lawyers.  The book is addressed to those starting out in the legal profession and to junior partners, and is subtitled An Introduction to Your Future. It restates views expressed in Susskind’s earlier works, especially The End of Lawyers?, sketches out the new legal landscape as he expects it to be, and (most interestingly) looks at the prospects for younger lawyers and at the skills they will need for the new legal landscape.

TomorrowsLawyersThe points are all familiar ones – Susskind is cheerfully unrepentant about saying the same things for years, not least because time has invariably proved him right. The most specific predictions – about the use of e-mail and websites, and about the use of technology to standardise and commoditise the delivery of services – were once derided but are now part of life. The broader predictions, effectively signalling the end of the traditional law firm model, have always seemed reliable but distant, something on the horizon which lawyers might hope not to reach before retirement. My sense on finishing Tomorrow’s Lawyers is that we can now see the waves crashing on the rocks. We have reached the horizon.

More specifically for litigation departments, the “cottage industry” approach which Susskind derides will die, and probably in 2013. eDiscovery / eDisclosure, the major cost component in many cases, is still about finding the evidence, but has become an exercise in search, in project management, in statistics, in budgets and metrics. The point is not so much that lawyers are unused to this, but that technology, and those who know how to use it, can do it better, more cheaply and to a higher quality – you will perhaps recognise a well-known Susskind paragraph in this. The quality and accuracy of such tools increases yearly; just as significantly, the rise of managed document review providers offers the transparency and predictability of time and cost which (not coincidentally) is the aim of both courts and clients. It is not that lawyers cannot compete with these new business models but that that few of them seem willing to try.

I will come back to that in a moment.  What does the year 1599 have to do with it? Read the rest of this entry »

The Jackson Reforms encourage proportionate eDisclosure / eDiscovery in any jurisdiction

January 24, 2013

I am taking part in a panel discussion at LegalTech next week with Integreon and kCura on the subject of the Jackson Reforms. We will emphasise that the rule changes generally reflect duties to which lawyers are subject anyway, and in any jurisdiction, to find the best tools and techniques for conducting disclosure / eDiscovery proportionally.

I pointed yesterday to an observation by Mr Justice Ramsey that there will be “a few sweaty palms” as lawyers face the forthcoming changes to the UK’s civil procedure rules. Collectively known as “the Jackson Reforms” after Lord Justice Jackson who inspired most of them, they have also acquired the nickname “the Big Bang” thanks to a decision to roll out all the changes together.

This seemed a mistake to me when it was first announced 18 months ago, and it seems even more misguided now that we are a few weeks away from the implementation date and have yet to see the final form of the rules. I wrote about that in my article Uncertainty means expense as we wait for the Jackson rules.

The combination of fear and heightened expectations which results from this obscures the fact that the rule changes relevant to the disclosure aspects of case management are radical only in that both judges and lawyers have ignored the rules as they stand – a point which Lord Justice Jackson emphasised in his Review of Litigation Costs. They also reflect what both clients and courts should expect anyway. Read the rest of this entry »

Mr Justice Ramsey: Costs Budgets will induce “sweaty palms” but lawyers will adapt

January 23, 2013

The Law Society Gazette carries a report of a speech made yesterday by Mr Justice Ramsey on the forthcoming cost management rules. He anticipated that lawyers will adapt to the idea that they must present a costs budget but that there will be “a few sweaty palms” when the new regime begins in April.

Lord Justice Ramsey is, of course, right to say that budgets are a “routine part of domestic life”. More significantly, there is no other project or initiative in the corporate world which does not begin with some idea of what the costs will be. Whilst lawyers (and judges come to that) may struggle with the new discipline, clients are likely to welcome it. It inevitably involves a certain amount of upfront cost; if the Jackson reforms deliver what the author intended, then that investment will quickly be recouped by the reduced costs of litigation or by an early decision, based on the budget, that the case is not worth running.

Mr Justice Ramsey emphasised that judges have been attending training seminars to help them fulfil their duty of active management in the new climate.

The fact that Mr Justice Ramsey made the speech at all appears to remove the fears expressed in the Solicitors Journal yesterday in an article headed Silence over Jackson “leading to rumours of delays” and to the suggestion “that the whole thing could be put back”.

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.


7th eDisclosure Forum in London on 15 November. Are you ready to benefit from the new eDisclosure rules?

October 30, 2012

The reforms consequent on Lord Justice Jackson’s recommendations will take effect in April 2013. A conference taking place in London on 15 November will focus on those which relate to eDisclosure, stressing the benefits which will flow to lawyers and clients and not merely the risks and burdens of compliance with new rules.

It is conventional, when new laws or rules are pending, to see warnings in lurid headlines about the consequences of being unready for the coming changes. Lawyers do this with their clients, of course, urging them to seek advice (from them, obviously) about the steps which must be taken, the policies which must be drafted, the training which must be given and the other preparations which must be made if the clients are not to take the high road to Sodom and Gomorrah when the new rules take effect.

It is easy to take the same line with lawyers themselves when court rules or imminent legislation will affect the way they work. We saw this when the eDisclosure Practice Direction 31B came into force in October 2010 with its obligations to discuss with opponents the sources of their clients’ data, the scope of the search, the tools and techniques which they intend to use to identify disclosable documents, and other things all preparatory to having a meaningful discussion with the judge at the CMC.  Many were content to wait until the problem arose, to take on the chin the criticism from their opponents and the judge and to learn the ropes on the job, as it were.

The reforms consequent on Lord Justice Jackson’s report on litigation costs are all to take effect on the same day, 1 April 2013. They are so broad in scope, and some of them are so contentious, that it is easy to miss those parts of the rule changes which directly affect case management generally and eDisclosure specifically.  Since they include closer judicial control of cases and an end to the generally relaxed approach which the courts have shown hitherto towards non-compliance with rules and orders, it might be a good idea to start finding out what the changes include.

There is more to the case management regime than the risk of punishment or being made to look a prat in front of court and client. Rule changes, both those of 2010 and those which are coming in April 2013, offer real advantages to lawyers who understand the rules, and to their clients. The 7th eDisclosure Forum, taking place in London on 15 November, is a one-day summary both of the rule changes and of the parts which offer opportunities to those who are ready for them. Read the rest of this entry »

Singapore seeks SaaS discovery solution as London barristers set up shop there

July 2, 2012

The two subjects which comprise my heading are not directly related to each other save that they both point to Singapore’s continuing consolidation as a dispute resolution centre.

The Singapore Academy of Law is inviting proposals from companies able to provide eDiscovery software as a service (“SaaS”) for law firms and organisations in Singapore. The notice about it is here with links to the formal call for collaboration.

As the notice says, the ambition is to provide services enabling law firms and clients to identify and manage large volumes of e-mails and other electronic information for use as evidence in legal disputes.  As I understand it, this is not intended to be mandatory or the only permissible solution for those who have their own software or who prefer to instruct a full service electronic discovery service provider with their applications of choice. The ambition is to encourage law firms with mid-sized and smaller cases to have access to the latest technology.

There is a clear policy here, and it is one which is consistent with recent developments in the Singapore practice rules relating to electronic discovery (I wrote about that here). The Singapore authorities are in a position to drive change in a way which other jurisdictions can only dream of, partly because of Singapore’s size, partly because it can afford to invest for the benefit of litigants generally, and partly because it is driven by judges who are ambitious to make this succeed. Read the rest of this entry »

An eDiscovery, social media and libertarian miscellany

June 5, 2012

I am in Hong Kong, cursing that I left behind the USB thingie required by my wireless headset so that I must type everything by hand. I am here for InnoXcell’s Asia eDiscovery 2012 Exchange, and specifically for panels on social media and on the convergence of eDiscovery and information governance. This is an odds-and-ends post, a collection of loose ends of the type which gather when you flit from place to place and subject to subject, as I have been doing lately, including a bit about my own experiments with social media, some reflections on liberty derived from what I am reading and from the Jubilee – oh, and a little about eDiscovery.

Recent Google Plus posts and the breadth of the subject-matter

The variety of topics encompassed by the broad heading “eDiscovery” appears from recent posts here on my blog and on Google Plus. The most recent blog posts cover costs management, early data assessment, metrics, social media, predictive coding, the duty of competence in eDiscovery, and US extradition demands, amongst other things. The range of related subjects does not end there: my Google Plus posts have the following headings:

Inside Counsel: Three companies talk about their social media governance policies

Successful Claimant loses costs in excess of budget: Henry v News Group Newspapers Ltd

The effect of Google’s Search Plus Your World on Facebook Traffic – or not

eDiscovery Institute Announces Second Annual Leadership Summit – October 17-19

Dominic Regan takes the MoJ to task over plans for an employer’s liability portal

InnoXcell Hong Kong: The convergence of eDiscovery and information governance

InnoXcell Webinar: The Social Media Governance Imperative

Some views of and from the Red Rock and a few panel pictures

Rob Robinson’s rolling update of the Da Silva Moore court documents

In between, there have been a couple of webinars, a paper or two, a three-hour UK eDisclosure seminar and planning calls for conferences yet to come. There has, in addition, been rather too much opportunity to observe that the poor project management skills shown in many eDiscovery exercises are as nothing compared with the incompetence, indolence, stupidity and sheer contempt for others shown by the sort of people who manage public transport, immigration queues and airport processes. Hong Kong provides an honourable exception under all these headings. Read the rest of this entry »

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.

Lord Justice Jackson to undergo cancer operation

April 18, 2012

A brief note on the judiciary website reports that Lord Justice Jackson will shortly be undergoing an operation for cancer. His absence is not expected to impede the work of the implementation of the Costs Review Final Report which will be conducted by the Judicial Steering Group in his absence.

I wish him a successful operation and a speedy recovery, first and most obviously for his sake, but also for the sake of the reforms which he has been driving through, fighting indifference and apathy as well as positive opposition.

Supporters outnumber opponents, however vociferous some of the latter may be, and Lord Justice Jackson has won the respect of many of those who oppose some of his aims. It is hoped that he will be back by October.


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 »

Who explains eDisclosure sources to the lawyers and the court?

December 16, 2011

An article by US lawyer and eDiscovery expert Jon Resnick of Applied Discovery has application in UK proceedings as well as in the US. Who on your side actually understands where the client’s data is and what is involved in collecting it?

I got an e-mail last night from Geoffrey Lambert in Melbourne whose opening line read simply “Stakhanovite!”. That, as many of you will know, is shorthand for “You have produced a lot today” and implicitly compared my published output (in fact the accumulation of several days’ dictation) with the work of Alexey Stakhanov who, on 19 September 1935, was reported as having mined 227 tonnes of coal in a single shift at the Ukraine city the which is now named after him. His accolades for this feat included the Order of Lenin and having his photograph on the cover of Time Magazine. Some said that the output may not have been entirely down to Stakhanov alone, but the feat was taken up by the USSR marketing machine as evidence of its citizens’ commitment to productivity.

I knew of Stakhanov, but looked him up anyway and then turned to the next item on my to-do list, a commentary on an article by Jon Resnick, Worldwide Vice President Field Operations and Marketing for Applied Discovery. Jon too is a man of prodigious output, with regular articles both on Applied Discovery’s blog and on the company’s Weekly Snapshot which, as I said in a recent article, is one of the more useful and comprehensive sources of regular eDiscovery information. An article by him also appeared on the Forbes web site recently. I have no idea if, as was said of Stakhanov, Jon has a team of willing helpers to do the research and proof-reading which is the writer’s equivalent of opening the seams and carrying away the coal – if so, perhaps he could lend me one, since the volume of material to write about at the moment far exceeds the time available to do it, and I don’t have a large marketing operation to run in addition, as Jon does. All in all, Jon Resnick (in the top photograph below) deserves the comparison with Alexey Stakhanov (the lower photograph) more than I do. 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 »

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 »

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.


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 »

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 »

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

June 4, 2010

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

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

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

Terms of Reference for Australian Discovery review

June 2, 2010

I have already reported that the Australian Attorney General has commissioned a review of  discovery laws. We now have sight of the formal Terms of Reference which embed the purpose of the review firmly in the title – “to improve access to justice”.

Their brevity may mislead one into thinking that the Terms of Reference are narrow in ambit. As with Lord Justice Jackson’s terms of reference, the opposite is true – this review is as broad in scope as it could be. Note the recurrence, even in this short document of the phrase “as early as possible”:

…requiring parties to identify and disclose critical documents as early as possible

…ensure key documents relevant to the real issues in dispute are identified as early as possible

…obligations on practitioners and parties to identify relevant material as early as possible

You cannot miss the point there, can you? Read the rest of this entry »

IQPC the best London e-disclosure conference again

May 22, 2010

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

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

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

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

May 20, 2010

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

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

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

Judges Play 1 at IQPC

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

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


Imminent reform in prospect for Australian discovery process

May 14, 2010

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

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

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

May 13, 2010

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

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

Reminder: Dominic Regan and Chris Dale on e-Disclosure at Ely Place Chambers on 12 May

May 11, 2010

Professor Dominic Regan and I will be leading a seminar from 2.00 until 5.15 on Wednesday 12th  May at Ely Place Chambers on the subject of electronic disclosure of documents.

Lord Justice Jackson’s only recommendation in relation to e-disclosure was that there be substantial training for both lawyers and judges. This is an opportunity to find out why he said:

The first point which needs to be made about e-disclosure is that it is inevitable in cases where the parties hold the relevant material electronically. For the parties to print all the material out and then exchange it in hard copy would often be impracticable. With all but the smallest volumes of material, that course would not be cost effective. Thus in cases where edisclosure is a consideration, it is often a practical necessity rather than an optional course.

Lord Justice Jackson also drew attention to the need for judges and lawyers to know about and understand the technology which is available to address the problems raised by large volumes of electronic documents. Dominic and I will be supported by three providers of litigation support services. 7Safe will talk about the collection of data. Legal Inc will describe the range of consultancy services which are on offer from a general provider of litigation services. FTI Technology will cover processing and document review.

This is a lot packed into one afternoon – there is nowhere else where you can cover the law, the practice and technology in one session. Ticket prices are £94 including VAT and can be obtained on application from Chris Drury, the Clerk at Ely Place Chambers.


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

May 5, 2010

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

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

The recording is intended to provide a context for the Summit, in particular for the US-UK judicial panel. Read the rest of this entry »

The 2010 Duke Conference on US Civil Litigation

May 4, 2010

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

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

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

April 28, 2010

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

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

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

Chris Dale and Dominic Regan on e-Disclosure at Ely Place Chambers on 12 May

April 26, 2010

Professor Dominic Regan and I will lead a session on electronic disclosure at Ely Place Chambers, 30 Ely Place, London EC1N 6TD on Wednesday 12th May 2010. The event starts at 2.00pm and will run until 5:15pm

The Chambers notice about this event is here . The cost is £80 + VAT, a total of £94. Application should be made to the Chief Clerk, Chris Drury

This is the first of an intended series of talks around the country. Dominic Regan is Visiting Professor of Litigation at City University, and is well-known as a speaker on all aspects of litigation, and particularly on costs. He will talk about the law and I will cover the practical aspects of handling electronic disclosure in a climate which, thanks to the recent cases, brings enhanced risks to reputation as well as in relation to the actual conduct of the case on behalf of the client.

Of particular interest at the moment is the ESI Questionnaire annexed to Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009), one of the topics which we will focus on.

Lord Justice Jackson has highlighted the value to practitioners and judges of education in this area, including the benefit of actually seeing some of the types of applications and hearing about the services which are available to help tackle the problems.

We will be accompanied by suppliers of some of these tools and services who will between them cover the different stages of collection, processing and review.

There are practice development opportunities here as well as mitigation of risk. This is a good opportunity to get up to date in an area which is growing in importance.


Hear Master Whitaker at ILTA INSIGHT 2010 on 27 April

April 14, 2010

ILTA INSIGHT 2010 takes place on 27 April at the Grange St Paul’s Hotel.  INSIGHT 2010 is ILTA’s 5th annual event in the UK and brings a pocket-sized and UK-focussed version of the excellent main ILTA conference, which I go to every year in the US.

It is an opportunity to hear from leading technologists and business strategists, from the UK and the US, who will share their expertise on matters of great interest to the legal profession. The main event so far as I am concerned (I am allowed to say this in an e-Disclosure blog) is a session called Technology as a Component in Lord Justice Jackson’s e-Disclosure Recommendations in which Senior Master Whitaker and I will discuss the technology aspects of e-Disclosure developments in England & Wales. In this area of case management, you cannot separate the operation of the rules and the use of technology – you have only to look at Master Whitaker’s own judgment in Goodale v Ministry of Justice (I wrote about it in Goodale v MoJ – a template judgment for active management of eDisclosure) to see that some understanding of the available technology solutions is required by judges and practitioners alike. This point was made by Lord Justice Jackson in his recent Report on Litigation Costs, whose only express recommendation on the subject was for education. The Jackson Report, the proposed new Practice Direction and ESI Questionnaire (the latter was annexed to the Goodale judgment) and some other recent cases will all be covered in our session.

There is plenty else going on, as the ILTA INSIGHT brochure shows. Other sessions include: The Evolution of Office, Traversing the Generation Divide, Business Processes (BPM, BPA and BI), The Future of the Traditional Desktop, 21st Century Collaboration, the Electronic Working in the RCJ, Electronic Evidence – Preservation to Production, and a presentation by LITIG on their Review of Case and Matter Management Systems.

There is no fee for law firm and law department professionals to attend this event, but space is limited.  Registering online at, or by e-mail to Peggy Wechsler at


A week of positive opportunities in e-Disclosure

March 27, 2010

There are two reasons for running a week’s worth of reports and comments into a single article. The least meritorious of them is that I will not keep up with it all if I do not do a composite post. More positively, that is because a lot has been happening and I can better convey the sense of that in a single article. The overall message is one of positive steps forward, not merely defensiveness.

The previous week ended with a session run jointly with Andrew Haslam of Allvision at a medium-sized firm with a strong regional base and a London office. It is exactly the sort of firm which I have written about as holding the key to the future, at least in my own narrow ambit – agile, versatile, staffed with lawyers trained at the big city firms, and hungry for quality litigation work. It is the sort of firm which, if it makes alliances with the right providers of litigation services and invests in the skills, could take on much bigger firms at a cost lower than theirs, partly because their costs and charging rates are lower and partly because of the way they run their litigation. I will spend any amount of time with firms like this, because they get it, and could change client perceptions about how litigation should be managed.

I covered the background — the framework of rules and cases, the implications of the Jackson Report, and where we stand with the proposed new practice direction and ESI Questionnaire. Andrew Haslam spoke about the technology which is available and what a firm needs to have in place as processes and connections to be able to run with anything which comes along. In the pub afterwards, one of the solicitors told me frankly that he had come to the session expecting to be unconvinced but, having heard us on the subject of the ESI Questionnaire, intended to send it to his opponents in a particular case first thing on Monday morning. A result, I think. Read the rest of this entry »

Talking rather than writing – normal service will be resumed soon

March 24, 2010

The relative silence on these pages recently does not imply that I have run out of things to say (sorry about that) merely that I have had a good run of being out and about, or making plans for future events here and abroad. All good, all interesting, and all indicative of a rise in interest in e-Disclosure / e-Discovery amongst those who need to know about it, but not consistent with much considered writing.

Gucci America v Curveal has not passed unnoticed, and there is an article coming up which invokes 19th Century British gun-boat diplomacy and The Wreck of the Old 97 as parallels for the US approach to trifles like the laws of other countries. Another article, consistent with my current theme about objectives being more important than processes, shows how a PR agency can be 100% successful in getting its client’s name out there, whilst making it deeply hated – the SEO is great, chaps, but the effect is wholly negative.

All this and more when I get back from the third in my sequence of post-Jackson talks in London. Tomorrow’s one is to ALPS, the Association of Litigation Professional Support Professionals, in company with Vince Neicho of Allen & Overy – an important and knowledgeable audience. There is one more after that, on Thursday, at which I am listening rather than speaking, and then I am back at my desk for a bit and can catch up.


7Safe eDiscovery networking event on 15 April

March 19, 2010

7Safe is holding an eDiscovery networking event on Thursday 15 April at The Hoxton Hotel, 81 Great Eastern Street, London EC2A 3HU at 6.30pm.

It is to mark the official launch of their hosting of Anacomp’s CaseLogistix, one of the document review tools which was used by Anton Valukas, the examiner responsible for the recent report into the collapse of Lehman Brothers (see my articles about the Lehman Report and about the alliance between 7Safe and Anacomp).

I have a two interests in going, since both 7Safe and Anacomp are sponsors of the eDisclosure Information Project, and a third if you count the fact that I am speaking at the event. I see that the invitation is careful to distinguish between that part of the evening and the “fun” which is to be provided along with the refreshments.

If “fun” slightly overstates the entertainment value to be derived from listening to me talking, these are certainly interesting times, as I hope I will make clear. It may be premature to suggest in March that Senior Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors [2009] EWHC B41 (QB) (05 November 2009) is the e-Disclosure judgment of the year, but it certainly puts pressure on those who think that they can simply ignore electronic documents as being too difficult or too expensive to handle. Read the rest of this entry »

Vector Investments: successful claimant made to pay for unhelpful disclosure

March 14, 2010

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

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

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

New e-Disclosure articles on the SCL website

March 14, 2010

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

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

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

March 13, 2010

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

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

March 12, 2010

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

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

Cats Legal partners with Digital Reef

March 10, 2010

I wrote recently about Cats Legal, the combination of established print solutions provider Cats Solutions and litigation support provider LDSI (see Cats Solutions combines with LDSI to become Cats Legal).  My planned meeting with Mark Wagstaff of Cats Legal had to be postponed, so I have yet to visit the new operation. What I have had, however, is a press release from Digital Reef announcing a partnership with Cats Legal.

Cats Legal obviously intends to hit the ground running if this deal is anything to go by. Digital Reef brings a range of solutions for handling data for e-Discovery / e-Disclosure. Apart from its scalability (it can apparently process as much as 10 TB per day in some cases), it can be brought into use very quickly, making data available to a company and its lawyers in the timescales imposed by regulatory investigations as well as for litigation and internal investigations. Read the rest of this entry »

Legal Efficiency Supplement in the Times

March 8, 2010

I mentioned in passing in my post of last night that  I am to interviewed by Dominic Regan for a special report which Raconteur are publishing  on Thursday 25 March in The Times newspaper. Called Legal Efficiency,  it will look at, amongst other things, Lord Justice Jackson’s Report on the costs of Litigation, technology such as that required for e-disclosure, and litigation funding.

The report will consider how both law firms and general counsel can improve their efficiency to reduce costs, save time and improve results. It will discuss the way law firms bill their clients, the changing role of barristers chambers, alternative business structures and legal process outsourcing. The report will also look at the emergence of litigation funding to bring access to justice for smaller claimants/ defendants as well as increasing efficiency for larger companies. It will look at ATE and BTE insurance from the perspectives of the Jackson Report and those whom it affects. Finally, there will be specific treatment of e-disclosure, document review, early case assessment, business continuity, workflow management and other technology for law firms and corporate legal departments alike.

Going out on the same day as The Times’ legal section, it should be a very informative awareness piece, which will undoubtedly receive a lot of attention that is very timely indeed.


Spring Offensive in the eDisclosure War

March 8, 2010

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

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

E-Discovery costs-shifting in US litigation

March 3, 2010

I referred in a recent post to an article I had read which concerned the shifting of US e-Discovery costs from one party to another, that is, the situation where costs incurred by one side are taxed and payable by the other.

I was puzzled, because I was not aware that this was common in US courts, where they refer to costs recovery between parties as “the English rule”. If one has questions about such things, the man to ask is Craig Ball and, although I did not ask him, it turns out that he has written recently on this subject anyway. Read the rest of this entry »

The Readership of the e-Disclosure Information Project

March 3, 2010

I have just been asked to give some statistics for readership of my blog and, having done the research, I might as well summarise it here. It happened to be quite a good day to ask – there were 436 page views that day (Monday), my second-highest daily hit rate, and 432 today.

Although I am obviously interested in knowing how many people take the trouble to read what I write, mere numbers are not a particular ambition. I am more interested in being thought of as authoritative and interesting to those who actually want to know about the subject, not to attract numbers for their own sake. My aim is to make sure that anyone who is interested in the subject of e-Disclosure / eDiscovery will come across my sites either directly or by reference from elsewhere. I am perfectly happy with 5,000 to 7,000 page views per month on a narrow subject, but it is not what I “sell”. I value the anecdotal evidence that people notice what I write ahead of the bare statistics.

Let us take the actual statistics first. The graph below shows page views since August 2007. They settled at around the 5,000 mark in September, October and November 2009; numbers were down, inevitably, for December (the same is true of the summer holidays) and then shot up to over 7000 in January and a little less in February. Read the rest of this entry »

E-Discovery and Judicial Involvement in Australia

March 1, 2010

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

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

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

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

February 26, 2010

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

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

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

Moving forward on all fronts

February 25, 2010

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

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

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

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

February 23, 2010

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

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


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