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 »

Mitchell and relief from sanctions under CPR 3.9 Part 3: eDisclosure compliance

January 10, 2014

Two preceding articles have considered the implications of the Mitchell judgment, one in general terms and one more specifically, with a look at alternative approaches which we might see from the courts.

This third post looks at what the disclosure obligations actually are by reference to rules and cases – not a rule-by-rule analysis, but pointers to sources whose primary focus is on properly reducing disclosure or on the level of competence expected of lawyers (and judges, perhaps). There is probably room for a fourth post concentrating on what might be done to avoid getting into the position where deadlines might be missed.  You have had enough words on this for now (and if you have not, I certainly have) so I will do this bit in the shortest form possible.

There is only so much value in squealing that the sky is about to fall in. Let us accept that strict enforcement of compliance with the rules is a fixed policy of the senior judiciary; what is needed is a is a cool analysis of what is required to avoid the kind of conduct which gives rise to sanctions in the first place. Consistent with my general approach, I try to look at it in more positive ways than merely “How do you avoid breaches?” – that defensive benefit is a by-product of getting it right.  “Getting it right” in disclosure terms includes producing the minimum consistent with the duty to court and client – the court calls it “proportionality”; the client calls it “value”.

Rules and cases

Do read the bloody rules – not just those added in 2013 but those which preceded them and which are still in force. Between them, they offer a code which, properly used, allows you to limit the scope of your own disclosure and to enforce limits on the disclosure of your opponents. “Allows” is actually the wrong word – these rules positively require you to reduce the scope of disclosure and require judges to police that with the “active management” which has been expected of them at least since 1999. Read the rest of this entry »

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 »

Content Obesity: an interesting parallel between human and corporate health problems

July 2, 2012

I have two reasons for referring you to an interesting pair of articles by IBM’s George Parapadakis on his personal blog For what it’s worth…. One is that they introduce an interesting parallel between growing data volumes and a medical condition affecting an ever-increasing number of people; the other is that it links to an article which I have recently written for IBM.

The first article Content Obesity – Part 1: Diagnosis kicks off with definitions of human obesity and content obesity which clearly identify the parallels – increased health problems for humans and increased legal and compliance risks for companies. The expression “business agility” invokes a pleasing parallel between those bloated people whom you see wobbling slowly down supermarket aisles and companies whose every action – defensive ones like compliance and eDiscovery and more positive activities aimed at business growth – is hampered by the sheer weight of data which they carry. It is important to emphasise lost benefits as well as increased risks, whether thinking of the lard mountain who has lost sight of his or her feet or the company which has lost its business intelligence in mounds of raw data.

George Parapadakis extends the medical parable well in his second article Content Obesity – Part 2: Treatment. Just as human obesity might be tackled by a combination of abstinence, treatments and positive steps, so content obesity might be reduced by reducing storage and retrieval costs and by curbing the information growth rate. Humans must distinguish between food which is good for them and that which adds nothing of value or is positively harmful; similarly, companies must distinguish between data worth keeping and the rest, and must be able to identify high-risk material.

The mere introduction of the parallel is helpful. The articles themselves are yet more so, offering ways to identify problems and some straightforward solutions.

The paper of mine to which George Parapadakis refers is called Information Governance in UK civil litigation – how to reduce legal risk and cost.  Its primary focus, as its title implies, is on UK civil litigation, but it emphasises that prospective disclosure obligations in litigation are only one reason why a company needs to keep control of the data which it collects.


Interview with James Moeskops of Millnet on Predictive Coding

April 30, 2012

In the light of Judge Peck’s Da Silva Moore Opinion approving the use of predictive coding in US Federal civil proceedings, I recently interviewed James Moeskops of Millnet about the use of this technology in English courts. The result is a podcast which you can find here.

Anecdotally, the use of such software is increasing in the UK – I say “anecdotally” because such things rarely become the subject of published judgments in the UK, and my information is the aggregate of feedback from providers who, like Millnet, have the software and the skill to provide it.

One of the two cases covered in my article Two predictive coding case studies emphasise time and cost savings involved a UK matter in which Millnet and Eversheds used Equivio’s Relevance product, and I thought it worth following this up now that we have a US opinion on the subject.

The brief recording begins with a short introduction from me describing in simple terms what predictive coding is. I then ask James Moeskops the sort of questions which might be asked by a would-be user – when would Millnet suggest the use of predictive coding, and what questions would James ask to get a feel for the case?  I also ask James to describe the process which Millnet would go through, in conjunction with the lawyers, to apply predictive coding technology to the data.

I conclude by asking James where he sees predictive coding going over the next 12 months, specifically in the UK. Read the rest of this entry »

Greg Wildisen of Epiq Systems on Predictive Coding in UK eDisclosure

April 18, 2012

The Society for Computers and Law has published on its website an article by Greg Wildisen, International Managing Director at Epiq Systems with the title E-disclosure: Training Technology.

Epiq offers predictive coding through the integration of Equivio’s Relevance product into Epiq’s IQ Review, a mixture of technology and consultancy services. Greg Wildisen summarises briefly the story behind Judge Peck’s Opinion in Da Silva Moore v Publicis Groupe which approved the use of predictive coding technology in a case in which parties had agreed to use the technology, and considers the likely reaction when this type of technology is used in UK proceedings.

He focuses on the significance of analysing non-relevant as well as relevant documents and, potentially, of doing so cooperatively with opponents in order to win agreement about the validity of the process. He thinks it possible that lawyers may object to the disclosure (in the broadest sense of that term) of documents which are not strictly required in the present litigation, not least because of implications for future cases.

I am reasonably optimistic about this, partly because (as Greg Wildisen makes clear) judges have discretion to make whatever orders they think appropriate for the better conduct of the case before them, and partly because clients’ objections are likely to whither in the face of the enormous potential for cost savings – they will be willing to give a little to gain a lot or, at least, to make a proper assessment of the risks against the advantages

We shall see. Meanwhile, Greg Wildisen’s article is a good short summary of implications which UK lawyers and their clients should be thinking about.


Disclosure and eDisclosure – filming a video primer with Dominic Regan

March 29, 2012

I took part in a video webinar with LexisNexis this week, part of their rolling programme of Butterworth’s Dispute Resolution webinars.

The key fact which I want to put right at the top of this article is that 2,340 viewers from 85 firms registered to watch this webinar, either live or by downloading it across the year. There is the CPD bait and, no doubt, law firm training supremos go round with whips to compel attendance, but this is tremendous reach, and an indicator of the subject’s importance.

The session was chaired, as always, by Professor Dominic Regan. My subject was disclosure (with and without an “e” at the beginning), and barrister Shantanu Majumdar of Radcliffe Chambers covered privilege as he did for the same event last year. Privilege is a subject which needs a light touch and rarely gets it – when it comes up at litigation conferences, I usually go out and have a smoke, check my e-mails and make my calls, and this is difficult when you are shut up in a basement in front of a camera. Shantanu Majumdar, uniquely in my experience, makes the subject interesting.

Dominic  is a good chairman – he comes across more as a genial host who has invited a couple of mates round to talk about things which interest them, without diminishing at all the seriousness of the subject-matter or the importance of the content.  LexisNexis have much improved the studio, possibly as a result of my complaint last year that I had to look down and left to see the slides and up and to the right to look at the camera. The slides are now immediately under the camera, which makes engagement rather easier.  Furthermore, the remote-control does actually move the slides when you click it. Read the rest of this entry »

Plenty happening in eDiscovery for the beginning of 2012

January 8, 2012

If Friday’s flurry of activity on my Google+ page and on Twitter suggests catch-up and deck-clearing then that is exactly what it was. The Google+ page was set up for short snippets which, whatever weight they actually deserved, were not going to get a lovingly-polished and fully hyperlinked blog post. They are a way of expanding on my tweets, re-tweets and favourites; the full rationale for this is set out in my post New eDisclosure Information Project page on Google Plus for short eDiscovery posts.

The deck-clearing was needed for two reasons in addition to the obvious wish not to miss good content. The planning calls have started for forthcoming webinars and conferences, and I wanted the weekend clear for follow-ups to them, for other things which need prolonged concentration and for planning for that annual quart-into-a-pint-pot, the LegalTech calendar – I know I will not make it to most of the sessions I mark down, but it seems respectful to try. As today’s posts show, Friday morning’s catch-up was rather defeated by Friday afternoon’s new announcements.

It is perhaps worth setting out what January’s events are, pulling together posts which I have already written about them.

ESIBytes podcast on the New York Model Rules

I am taking part in a podcast recording on Monday 9 January organised by Karl Schieneman of ESIBytes. The subject is the Pilot Project regarding Case Management Techniques for Complex Civil Cases in the Southern District of New York. The more important participants are Ariana Tadler from Milberg and Maura Grossman from Wachtell Lipton who were involved in the Pilot Project.  My role is to talk about the UK’s eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire annexed to it. Whilst the UK was the first to formalise the structured exchange of information in advance of a case management conference, those of us who drafted it were influenced by the lessons, positive and negative, coming out of the FRCP meet and confer process. This iterative exchange of ideas is valuable beyond the two jurisdictions taking part in this podcast. 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 »

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 »

Metadata and Data Exchange Formats in Electronic Disclosure – a US model for a common-sense approach in the UK

February 25, 2011

UK lawyers are rightly sceptical about the relevance of US e-discovery rulings to their own cases. Occasionally, however, one comes along which is grounded in universally-applicable common sense or which throws light on some basic technological point which has not been tested in the UK. Judge Shira Scheindlin’s ruling in the Day Laborer case is one such.

Every so often, a US ediscovery case appears which is illuminating to UK lawyers dealing with e-disclosure. I put it like that, because many US cases have the opposite effect when recited to a UK audience. The general principles are broadly the same, but most US cases rely on terminology and principles – of “sanctions”, “defensibility”, “preservation” and “legal hold” – which all have their equivalents here but which we decline, so far at least, to get quite so worked up about. If the US thinks us backward as a result, then we are content to be thought so. Some of our key principles – that you do not have to look under every stone when searching for disclosable documents, for example – are near-heresies in the US.

They will come to our way of thinking eventually and, meanwhile, we have quite enough to do at a more fundamental level. When Lord Justice Jacob challenged the view that “No stone, however small, should remain unturned” (Nichia v Argos, at paragraph 50), he was enunciating a principal vital to the meaning of proportionality which needs to be clearly understood; he did not mean that we could ignore electronic documents completely if it all looked a bit complicated. Master Whitaker’s judgment in Goodale v the Ministry of Justice simply applies existing principles of proportionality, active management, discretion and co-operation which, if understood correctly, could reduce the cost of electronic disclosure in almost any case. The new Electronic Disclosure Practice Direction 31B is neither complicated nor technical, and is easily understood by anyone who bothers to read it – as some commentators may care to before they next criticise it as unduly burdensome. Let’s bite that lot off before we start inventing new problems to conquer.

Whilst most US ediscovery cases are of limited appeal in the UK, we have the luxury of picking and choosing the bits we like – as in fact do US courts, since most of the Opinions are merely persuasive rather than binding outside the court in which they were made. Some Opinions give us painstaking explanations of basic facts which are relevant and helpful in any jurisdiction, and one of those is Judge Shira Scheindlin’s Decision in the Day Laborer case (National Day Laborer Organizing Network v. U.S. Immigration and Customs Enforcement Agency, 2 011 WL 381625 (S.D.N.Y. Feb. 07, 2011) which was about a Freedom of Information Act (FOIA) request. It concerns the exchange of metadata and other matters relating to the form in which documents are handed over to the other side and, in looking at it from a UK perspective, I am going to skip most of the differences between our respective systems, the controversies over Judge Scheindlin’s ground-breaking opinions on other matters, and broader questions about lawyers’ discovery /disclosure duties, and just focus on metadata. Read the rest of this entry »

LDM Global webinar on 27 January – Sampling for Dummies: Applying measuring techniques in ediscovery

January 25, 2011

We all have a notion of what “sampling” means. My dictionary defines it as a “small separated part of something illustrating the qualities of the mass”. In electronic disclosure / e-discovery terms it can be useful at an early stage in determining what your document collection includes, to help make decisions as to what to include or where to start. At a later stage, it is used for checking what has been done, by pulling out examples of documents left in or out of a subset to check that the decisions stand scrutiny.

The new UK Practice Direction 31B includes “the use of Data Sampling” as one of the things which might be discussed with opponents before disclosure begins. The ability to take samples afterwards is part of the QA which lawyers like to do to reassure themselves, never mind anyone else, that they have done their job properly.

There is more to it than just sticking your hand into a bag and pulling out a few documents. Equally, it does not necessarily have to be a deeply mathematical exercise requiring the help of a statistician. Much modern software has tools designed to help manage a sampling exercise which will stand scrutiny.

LDM Global are producing a webinar on Thursday 27 January with the title Sampling for Dummies: Applying measuring techniques in ediscovery with Maura Grossman of Wachtell, Lipton, Rosen & Katz and Professor Gordon Cormack of the University of Waterloo’s David R. Cheriton School of Computer Science. I did a webinar with Maura just before Christmas – she gives good value, which translates across jurisdictions.

The details are as follows:

Date: Thursday 27th January
Time: 11am EST, 4pm GMT
Duration: Approximately one hour

You can find all the details and the registration link for the webinar on LDM Global’s website.


International discovery, sanctions, ethics and US-UK comparisons at Georgetown

December 8, 2010

I was, I think, the only UK speaker (or, indeed, delegate) at the Georgetown Advanced e-Discovery Institute. If the primary reason for going was to talk about US-EU differences, there was progress made too on the continuing US-UK dialogue about our respective disclosure rules and practice. There is two-way value in seeing how others see us.

A great deal of ground was covered, much of which illuminated the divide between US and UK practice and procedure. I make no apology for the fact that the result is a rather longer article than my usual ones.


The Georgetown Advanced e-Discovery Institute is a polite, learned event, some of whose sessions, one feels, may actually change things, not merely report or comment on them. There is certainly a mood for change, in the sense that no-one involved in US eDiscovery believes that the present approach is sustainable. An outsider sees what appear to be obvious places to start which inevitably centre round the points of differences with one’s own jurisdiction and, indeed, the UK rules came in for much positive comment, as I report below. We in the UK, in turn, need to raise the level at which we discuss the issues, and get more people, particularly judges, to engage in that discussion in the manner so impressively displayed at Georgetown. We might then see a convergence between our rules and the way they work in practice.

Any attempt to translate these thoughts into positive recommendations founders on deep cultural differences plus the knowledge that whilst the UK rules may be fit for their purpose, the practice has a long way to go. Do US lawyers and jurists bang on so much about ethics and keep each other in line with sanctions because they are more ethical than we are or less so? Do parties collect so much data because a) they really think that proportionate justice is to be found that way b) because the fear of being sanctioned has driven all reason out of litigation or c) because the lawyers and technology providers make a lot of money that way? Or is it just that the wheel is going round so fast – technology catching up with volumes and driving expectations – that no-one can stop it now?

And is it presumptuous of us from the UK to accept praise for our rules and for the proportionate spirit behind our rules, when so few UK judges take e-disclosure seriously, when parties in big UK cases can still assert that the disclosure of electronic documents is ipso facto disproportionate, and when we have just had to fight a long hard battle to persuade our Civil Procedure Rule Committee even to accept that the subject is worth raising?

Whilst the English say “electronic discovery is something Americans do, and look what a mess they make of it”, Americans say “England is two years behind the US”. Well, I for one will not disparage the US approach any more severely than they do for themselves, and if a two-year lag saves us from the worst excesses of US discovery, then can we have longer please? The reality is that we can both learn from each other.  The dream combination, perhaps, would be the rules of England & Wales managed by the array of US judges who were present at Georgetown. My view is obviously a partial one.

I will try and pick out the subjects which have most relevance across the jurisdictions, either because there are parallels, or because their absence is itself a matter of note. Read the rest of this entry »

Master Whitaker and Trilantic encourage e-Disclosure in Dubai

November 2, 2010

There is much emphasis in these pages on the fact that discovery of documents (“disclosure”, for some reason, in England & Wales) is a common law tradition not found in civil law jurisdictions such as those of mainland Europe. We tend to discuss e-discovery / e-disclosure as if it were merely a method of complying with the rules, and may overlook the reason why discovery plays such a large part in common law civil court proceedings.

We have discovery because the documents are usually the best source for the facts. Oral evidence and deductions, however well-intentioned or carefully arrived at, are no substitute for the documents which evidence what people said and thought at the time. If discovery is now an even bigger component of cost than it used to be, that is because of the ease with which we can create and disseminate recordable information, and not, as some seem to think, because rule-makers and technology suppliers have conspired to exaggerate the problems and the cost.

The Dubai International Financial Centre (DIFC) could presumably have chosen any model when it defined the dispute resolution processes for its court. One assumes that it is the primacy of contemporaneous written evidence which led it to adopt something very similar to the common law discovery processes (the court is in any event expressly established as a common law forum).

An article in The Gulf Today of 20 October headed DIFC courts initiative provides coaching in e-Disclosure domain reports on a panel moderated by Nigel Murray of Trilantic, which has recently opened an office in Dubai. The panel comprised Steven Whitaker, Senior Master of the Senior Courts of England and Wales, Queen’s Bench Division, Sir Anthony Evans (former Chief Justice of the DIFC Courts) and Graham Lovett, Managing Partner of Clifford Chance Dubai. 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 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 »

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 »

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 »

Structured data is neither as easy nor as difficult as it sounds

April 26, 2010

Lawyers tend to overlook structured data. If they think of it at all when giving disclosure, it goes into the box marked “too difficult to deal with”. A decision that it is disproportionate to handle it may be right, but “decision” implies that its value has been weighed against cost, which is not the same as just ignoring it. I asked Jim Vint at FTI Technology to give me some examples where structured data was crucial to a case.

In general, lawyers like structure, with its implication of order and of things being in the right place. I do not necessarily mean that they (or “we”, strictly, since I am a lawyer too) prefer that every day is the same from alarm clock to Ovaltine (that is what the civil service is for as a career), but lack of organisation wastes time, and time is money. If you need a library book, your favourite coffee, or a particular iTunes track, then it is helpful to have some degree of pattern and consistency to help you find those of a like kind in a regular place. You expect a library to group its stock by subject and type, and not have law reports, textbooks and periodicals stuffed any old how into random shelves or all over the floor; imagine going into Starbucks and being told that every possible permutation of coffee, chocolate and the rest is in a cup somewhere, but that you must lift each lid to see which is which; you would not appreciate having to scroll down endless lists of iTunes tracks until you find the one you want. We go for the structured stuff every time. 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 cdrury@elyplace.com.

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.


More coming on the Shoesmith – Ofsted – Balls e-Disclosure fiasco

April 1, 2010

We do not really do breaking news here, but rumour reaches me that we may hear more today about Ofsted’s disclosure failures in Sharon Shoesmith’s application for judicial review of the decision to dismiss her. Even as I write, apparently, journalists are ripping open packages with papers which may help us with all those unanswered questions.

My original article on it was called The Baby P case may be the disclosure story of the year, and you may care to refresh your memory about that whilst we wait to see what emerges.

Is this just routine incompetence of the kind we expect from our bloated public services (48% of GDP went on them last year)? Is it just ignorance of and disdain for the formal obligations of candour which the rules require and which apply particularly to disclosure? Perhaps it is that curious perception that electronic documents just don’t count somehow – we don’t understand them, so let’s just pretend they don’t exist or somehow fall outside the definition of a “document” in Rule 31.4 CPR – “anything in which information of any description is recorded” seems pretty clear to me, but I am not a civil servant. Were documents really “stuck in the photocopier”, or did someone use the shredder instead? Did they really print all the emails off and photocopy them?

And, even more interestingly, was there really an instruction to destroy documents which might have pointed to an earlier draft Ofsted report whose terms were not what Ed Balls, the ghastly and overbearing Children’s Minister, wanted? And if so, whence did those instructions come?

Bang on cue, here comes a Google alert to tell me that the papers have reached the media. Off to do some reading – more later.


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 »

Goodale v MoJ – a template judgment for active management of eDisclosure

March 5, 2010

The publication of Senior Master Whitaker’s judgment in Goodale v Ministry of Justice is important for reasons beyond the fact that the parties used the ESI Questionnaire which is annexed to the proposed e-Disclosure Practice Direction and which is also annexed to the judgment. The judgment includes a careful recital of the problems raised by electronic documents and of the rules which already cover them, as well as a copybook example of the analysis which a judge ought to make once it is clear that electronic documents exist and should be disclosed.

Senior Master Whitaker is, of course, the chairman (and I am a member) of the working party which drafted both the Practice Direction and the Questionnaire. You will probably be aware by now that the Civil Procedure Rule Committee recently decided that the appropriate course was to kick the PD into the long grass of a sub-committee. The Goodale judgment shows how much can be done by active management from a judge who is willing to roll his sleeves up. 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 »

There is more to FTI Technology than Attenex and Ringtail

February 20, 2010

My self-imposed job description involves flitting between all the players in the electronic disclosure / electronic discovery world, picking up information and ideas from one place and dropping them in another. I talk to judges, lawyers and technology suppliers, read a lot of web-based information and exchange e-mails and tweets with people from every corner of the e-Discovery world – “world” in both the figurative and literal senses. I am interested in the court rules, the practice and the technology and in how they relate to each other.

I keep secrets where I have them – from working with lawyers on behalf of their clients or when I am told of pending technology or marketing initiatives, to say nothing of the gossip which flies around – but, on the whole, my role is to talk and write about what I hear or read. The only filter apart from confidentiality is whether I am interested and think that others will also be interested.

This is a privileged position – I have lots of privileges, but the ability to pick off only the things which interest me outranks the rest. It allows me, magpie-like, to pick out the bright and shiny things and leave the rest on one side.

AttenexOne of the bright and shiny things in the litigation software market is Attenex, whose visual analytics caught my eye some time ago for precisely the reason why they attract lawyers – they make it possible to grasp the overview and to drill down to the detail in a way which is simultaneously efficient and intuitive. Attenex is now owned by FTI Technology, as is the equally iconic Ringtail Legal.Ringtail FTI has now had time to bed these products down into their overall (and very broad) software and services offering and I thought I ought to go and see where they have got to and how the pieces fit together in the process. Craig Earnshaw, managing director of FTI technology in London, invited me in for an afternoon recently to bring me up to date. Read the rest of this entry »

Containing the interest in the eDisclosure Practice Direction and ESI Questionnaire

February 14, 2010

There has been much interest in the draft eDisclosure Practice Direction and the Questionnaire which forms part of it. Lawyers and education providers keep asking for a sight of it. Lord Justice Jackson commended it. Rule-makers in other jurisdictions have been watching out for it. I aborted a Jackson-related podcast last week because we were so close to a decision on it. A lot of initiatives have been on hold waiting for it. Friday was the day of its third appearance on the Rule Committee agenda.

I have had to stockpile the mass of interesting US material which has come my way since LegalTech in order to focus on the domestic front. The very great interest which has been shown in the pending Practice Direction and ESI Questionnaire intensified as the day approached for the Civil Procedure Rule Committee’s third consideration of the documents which Senior Master Whitaker’s drafting group has been working on for nearly two years. I have fended off all requests for copies of it by referring to the rule that documents under consideration by the CPRC are not published until annexed to the minutes of the meeting at which they were discussed. That third meeting was held on Friday. Read the rest of this entry »

Letter in the Times about destruction of ESI

December 23, 2009

Amongst my predictions for 2010, published on the website of the Society for Computers & Law on 21 December, was this one:

Another side-effect of the Earles judgment will be a debate as to what the law of preservation and spoliation actually is in England and Wales. The focus will be on deciding at what point a party might reasonably have anticipated litigation.

This prediction has started to come good before the year is out, with the publication in today’s Times of a letter headed Data Destruction from Peter Hibbert, Associate Professor at the College of Law in Birmingham. He refers back to Grania Langdon-Down’s article of 17 December E-disclosure: how good is your filing system? which I wrote about on the same day. Read the rest of this entry »

The e-Disclosure Information Project in 2009 and 2010

December 21, 2009

My e-Disclosure predictions for 2010 are up on the website of the Society for Computers and Law. I have not checked back to my previous years’ SCL predictions, but I think that this batch have much more, and much better-grounded, optimism in them than was the case in previous years.

I will come back in a moment to my own ambitions for 2010, but it is worth first having a quick review of 2009. I wrote about 250 blog posts during the year, bringing the total to 489. There is no easy way of calculating the word-count, but that would add up to a fair-sized book. I was a speaker, panelist or chairman at 12 public conferences in 2009 and attended others. Venues included the US more than once, Brussels, Sydney and Singapore as well as the UK. I got involved in a couple of cases at a strategy level (that has not been the priority for the last couple of years). The rest of the time was spent in meetings or talking about e-Discovery / e-Disclosure in restaurants or bars. Read the rest of this entry »

Strategic alliance allows 7Safe to host Anacomp’s CaseLogistix

November 26, 2009

What is the seating etiquette if you go to a wedding knowing both parties? Do you have to make an invidious choice between one side of the church and the other? Perhaps you sit in the aisle or hang from the rafters.

I was set musing on this by the announcement that two of the sponsors of the e-Disclosure Information Project, Anacomp and 7Safe, have announced a new strategic alliance. Under the terms of the agreement, 7Safe provide the hosted version of Anacomp’s review application CaseLogistix, and will serve as a preferred provider of data processing and other e-disclosure services in the UK as an Anacomp Connected Partner Program Certified Services Provider. The press releases (7Safe’s here and Anacomp’s here) are necessarily in similar terms. Read the rest of this entry »

Parallel and cross-border developments in handling electronically stored information

November 24, 2009

The second session at the Thomson Reuters Fifth Annual e-Disclosure Forum in London on 13 November was called Parallel and cross-border developments in handling electronically stored information. I was the moderator, although if Air Miles were the qualification for talking about international subjects, Browning Marean of DLA outstrips even me by a wide margin.

The panel comprised Senior Master Whitaker, Mark Surguy of Pinsent Masons in Birmingham, and Josh Ellis, Chief Information Officer at the Serious Fraud Office. I suspect that Master Whitaker has a wider range of knowledge on international case management matters than any other judge in the world; I opened by saying that, in the last six weeks, I have been in Brussels, Washington, Singapore, and in front of the UK Civil Procedure Rule Committee and the only other person present on all these occasions was Master Whitaker. In addition he is, as Senior Master, the channel through which requests under the Hague Convention are made. Mark Surguy was the only practicing commercial lawyer from the UK at LegalTech in New York this year. Josh Ellis, quite apart from his present role at the SFO, was responsible for international collections at PricewaterhouseCoopers for years and was thus able to bring a practical and hands on dimension to the discussion. Read the rest of this entry »

Welcome to Stratify as new Project sponsor

November 18, 2009

I am very pleased to welcome electronic discovery software company Stratify as a sponsor of the e-Disclosure Information Project. Their addition to the list of sponsors coincides with the opening of their London office and data centre, as well as Stephen Whetstone’s welcome appearance as a panellist at the Thomson Reuters conference last week.

Stratify is a subsidiary of Iron Mountain, Inc., the information protection and storage services giant. Iron Mountain has long-standing facilities and clients in the UK and EU (see the Iron Mountain UK site) as well as elsewhere in the world. There is no technical reason why the data must be close at hand, but EU clients want not only to have personal contact with their discovery suppliers but must be able to house their data within the EU for data protection and privacy reasons. Iron Mountain’s storage and data security infrastructure and experience will be comforting factors. The Iron Mountain press release sets out the business proposition for potential clients. Read the rest of this entry »

The Continuing Challenges of Preservation, Collection and Exchange

November 17, 2009

The first session at the Thomson Reuters e-Disclosure Conference in London last week was called The Continuing Challenges of Preservation, Collection and Exchange. George Socha’s panel included a solicitor, a software provider and a judge – Matthew Davis of Lovells, Stephen Whetstone of Stratify and HHJ Simon Brown QC.

Judge Brown said that the court is interested in the material, and only the material, needed for a decision. The point at issue in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009), on which he recently gave judgment, was not a difficult one. The judge is the end user of the disclosure process and needs contemporaneous documents. He had been given many documents which were not relevant to the issues which he had to decide, but not the ones which actually mattered. Witness statements drawn up by lawyers are often not worth the paper they are written on relative to the contemporaneous documents, in this case the records of telephone conversations. Read the rest of this entry »

Master Whitaker addresses London Solicitors Litigation Association on e-Disclosure

November 12, 2009

I went to listen to Senior Master Whitaker speak last night to the London Solicitors Litigation Association about electronic disclosure. I was not expecting to hear much that was new to me – I have heard him speak five times in four countries in three continents in the last six weeks, so the anticipation of novelty was not why I flogged up to London. I go to anything I hear about where lawyers assemble with an interest in electronic disclosure.

It has to be said that, for a group which self-selected on this basis, the level of basic knowledge was not high. Although most claimed to know the difference between the pre-1999 Peruvian Guano test of “relevance” and the CPR definition of a disclosable document (one which is supportive of or adverse to the case of the giver or any other party), few knew of the co-operation and discussion requirements in section 2A of the Practice Direction to Part 31 CPR. Fewer had heard of Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch) (23 October 2008)
or last month’s judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) or knew of Lord Justice Jacobs’ thoughtful encapsulation of the problems in Nichia Corp v Argos Ltd [2007] EWCA Civ 741 (19 July 2007). Read the rest of this entry »

Discovery explorers need a map

October 16, 2009

You can kill an analogy with overuse, just as every cliché was once a clever new phrase. Describing e-discovery / e-Disclosure in terms of explorers and maps, however, does not become hackneyed, because exploration itself continues to excite and because it works very well as a parallel.

Each nation has its own stirring examples, and they come from all over the place. What do I get if I take the first ones which come to mind? Mallory and Tenzing climbing Everest in the year I was born. Howard Carter and Lord Carnarvon in Tutankhamen’s tomb. Sir Walter Raleigh in Virginia and South America. Scott, Shackleton and the others in the snowy wastes of Antarctica (I have a soft spot for Sir Vivian Fuchs, leader of the first overland crossing of Antarctica in 1958, if only for the newspaper headline “Vivian Fuchs off to Antarctica”). Doctor Livingstone greeted by HM Stanley in an African clearing. The use of maps necessarily implies that someone else has been there first, but is no less interesting – I have just bought a large-scale ordnance survey map of England in digital form so that I can scroll across it as we drive (as my wife drives, I should say), so interested am I in the landscape through which we pass.

If you are American, you do not need to go abroad to find stirring examples of exploration, and many of them are more or less in your own backyard. The names which come to mind are those of Lewis and Clark, whose expedition of 1804 to 1806 was the first overland exploration to the Pacific coast and back. That had a political and commercial purpose going beyond mere exploration for its own sake, since the US was in the process of undertaking the Louisiana Purchase, and neither it nor the French who were selling it, knew how big the acquisition was. We now know that it comprises about 23% of the modern US.

I am brought to this apparently random line of thought by a reference in Tom O’Connor’s recently published Top 10 EDD Tips for General Counsel, which can be found on the Law Technology News website (the second article on that page) and were the subject of Tom’s Masters Conference webcast. One which caught my eye was Point 5 which reads:

Talk to your IT department. They know how to make the map. You are Lewis and Clark, they are Sacajawea. You absolutely cannot navigate without them. Read the rest of this entry »

Costs penalty for non-compliance with e-disclosure obligations

October 9, 2009

A judgment given yesterday by His Honour Judge Simon Brown QC sitting as an Additional High Court Judge in the Birmingham Mercantile Court, will focus minds on the need to comply with the requirements of Part 31 CPR and the Practice Direction to Part 31 CPR when giving disclosure.

The case is Earles v Barclays Bank Plc in which the successful Defendant was penalised in its costs recovery after failing to observe the requirements of the disclosure rules. The judge was at pains to stress that there was no intent to conceal documents and that the omissions were the result of incorrect decisions as to the proportionality of the scope of search. The focus is not on the rules for their own sake but on the fact that if the Defendant’s disclosure had been conducted properly, then not only would much time have been saved at trial but a summary judgment application might have been successful. Read the rest of this entry »

Packed programme for Masters Conference

October 9, 2009

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

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

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

Reaching informed agreement that e-disclosure is not needed

September 21, 2009

Having just published an article about whether electronic disclosure is needed in all cases, I turned to Ralph Losey’s blog to discover that he had just published an article about whether electronic discovery is needed in all cases. We do have fun on our Sundays, don’t we?

My article is called How would Bray & Gillespie play in the UK?. The references in it to the propriety of making informed decisions against e-disclosure are a mantra which I often include to make it clear that electronic discovery / disclosure is not the inevitable outcome; the target is the right decision and the proportionate decision, and such a decision cannot be made without weighing and costing all the options. Ralph Losey’s article is called Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules which explores, amongst other things, the extent to which the obligation to discuss e-discovery at a Rule 26(f) conference can properly be discharged by a cursory agreement to opt for paper; the alternative, plastic, is seen as being:

where you waste a ton of money paying vendors to chase down unimportant ESI and pay young lawyers to read emails about what people had for lunch, which are then produced to each other on plastic CDs.

Ralph asks “Is there a conspiracy among attorneys, officers of the court, to disobey the very rules that they have sworn to uphold?” and concludes that he is not willing to go quite that far – yet. There are others in the US who would say that, and I used almost exactly the same words, mutatis mutandis, on my first outing before British judges two years ago, with the tactful rider that judges often made themselves silent co-conspirators by not making sure that the right questions had been asked. Ralph puts the same point this way:

[Judges] approve by their silent acquiescence. Not all do, of course, a few e-discovery oriented judges speak out, and speak loudly, but they are a small minority. Most judges just look the other way. Read the rest of this entry »

Outsource edisclosure and share the load

July 9, 2009

The outsourcing of legal functions is suddenly topical as a result of Rio Tinto’s decision to set up an outsourced legal resource in India and Pinsent Masons’ plan to have first pass litigation review done in South Africa – see Do two outsourcing stories in one week presage a trend?

Those who think that this is taking outsourcing too far, as it were, should bear in mind that the principles, the potential savings and the ability to add e-disclosure skills and resources to their litigation armoury are available much closer to home. Furthermore, they need make no upfront investment beyond a little training, and can get started tomorrow.

The first generations of litigation support applications generally required that a law firm purchased the software for in-house use and that they employed staff to administer it. The world has moved on since then, and those tools and resources and are more usually brought on board by having the documents data hosted by a third party, usually the software provider. This has many advantages, not least the fact that someone else incurs the capital outlay and takes responsibility keeping the data available 24/7. The law firm simply gets a bill for the rental of the server space, the provision of the software and any consultancy or data services which are required. The bill can be passed on to the client as a disbursement. Read the rest of this entry »

Cooperative hands across the sea

July 9, 2009

My post about the increasing exchange of ideas between the US and UK on matters of electronic discovery (Preserving the old ways, protecting the new ways) followed a spate of references in US e-discovery commentaries to what is happening in the UK. I observed that “The UK’s apparently quaint approach to disclosure conceals some workmanlike rules which deserve better use and serious consideration by others as well as ourselves”. An English audience may be interested to see some of what is said about us in the US.

The sources referred to below are amongst those to which I pay regular visits anyway, but their common element last week was that they all linked to articles of mine (and therefore turned up on my visitor statistics list). The point of the observation is not so much pride in the quality of my audience as evidence that what happens in the UK is now of interest in the US, which you would not have found a year or so ago. Read the rest of this entry »

Preserving the old ways, protecting the new ways

July 8, 2009

This column, as you may have noticed, is deeply attached to the old principles of discovery of documents as a means of bringing evidence before the court. It is also a determined advocate of new ways of managing it. The US has tended to look on our rules and practice as rather quaint. As the gloss comes off the American way, however, there is a new appreciation of the British approach.

My title comes from a 1968 song by the Kinks. The Village Green Preservation Society included the lines

Preserving the old ways from being abused
Protecting the new ways for me and for you
What more can we do?

The Kinks were past their prime by 1968, with Waterloo Sunset and Sunny Afternoon behind them. It was the year in which Led Zeppelin and Deep Purple were new, and the nostalgia and sentiment of The Village Green Preservation Society were deliberately out of the mainstream, championing old virtues in a style redolent of an older (and perhaps non-existent) past. The previous year’s Summer of Love and flowers in your hair may in truth have been pretty unsophisticated concepts, but they seemed very modern compared with Ray Davies’s plea for “little shops, china cups and virginity”. Read the rest of this entry »

Australia at the centre of the discovery world

June 28, 2009

The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s);  possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large. Read the rest of this entry »

Ark Group e-Disclosure Conference 2009

June 19, 2009

You can generate a lot of notes in six conference days in three countries in nine days and have little time to transcribe them. I am quite good at actually recording what people say, less so at the small but telling details like headings and page-numbering. I can generally rely on my memory to fill the gaps in my notes (and the bits I cannot read) but that is a tall order when information has rolled at me continuously for days like infantry at the Somme. Ark Group’s e-disclosure conference of the beginning of last week seems a distant memory on a cold, wet dawn in Sydney ten days later when I started writing it all up, still more in the dark aeroplane cabin surrounded by snoring travellers on the way home when I finished it off. There was lots of good stuff said at the conference, but I doubt you would read a verbatim account even if I could set it down. What follows is a summary.

The chairman on Day 1 was Lee Gluyas of DLA Piper UK LLP who, as in previous years, was well up to the challenge of keeping speakers to time. Lee’s opening comments identified a positive shift over the time he had been filling this role, a greater awareness of the issues and the need to grapple with them. Read the rest of this entry »

Making a play to sugar the e-disclosure pill

May 26, 2009

In a previous post (The discovery of disclosure commonality with a trans-Atlantic judicial panel)  I told how IQPC had, at my suggestion,  invited US Magistrate Judge John Facciola and Chief US Magistrate Judge Paul Grimm to come to their Information Retention and E-Discovery Management Conference last week and then asked me how I would like to make use of their talents.

One answer was the trans-Atlantic judicial panel which I described in that post, with Senior Master Whitaker, HHJ Simon Brown QC, Judge Grimm, Judge Facciola and me, moderated by Patrick Burke of Guidance Software. I have long wanted to do a mock e-disclosure hearing and this seemed a perfect opportunity. I saw one a couple of years ago in London in which Judge Facciola played – naturally – a judge. That had aimed at both US and UK procedures simultaneously and had, I thought, fallen between two stools in doing so. I wanted to do one under the English rules. We have had three cases recently – Digicel v Cable & Wireless, Abela v Hammond Suddards and Hedrich v Standard Bank London which had shown the downsides of not following the co-operation obligations under the Practice Direction to Part 31 CPR. Judge Grimm and Judge Facciola have been eloquent in their criticism of those who do not co-operate to reduce costs and who do not display the level of competence required of those who practice litigation. Why not cast them as the judge hearing an application by advocates who fell short of those standards, using facts similar to those of the English cases? Read the rest of this entry »

Keyword searching for e-disclosure documents is not like using Google

April 28, 2009

There is no one-size-fits-all answer when deciding what keywords (and what else apart from keywords) to use to arrive at the “right” set of documents for disclosure. You have to educate yourself to know what the court expects. There is more to it than finding Paris Hilton with Google.

It comes as a surprise to many that the UK Civil Procedure Rules include a reference to anything so sophisticated as keyword searches. Paragraph 2A.5 of the Practice Direction to Part 31 CPR says this:

It may be reasonable to search some or all of the parties’ electronic storage systems. In some circumstances, it may be reasonable to search for electronic documents by means of keyword searches (agreed as far as possible between the parties) even where a full review of each and every document would be unreasonable. There may be other forms of electronic search that may be appropriate in particular circumstances.

We were discussing this paragraph last night at a meeting of Master Whitaker’s drafting group, in the context of the proposed new e-Disclosure Practice Direction. The point at issue (or one of the points from a meeting lasting four and a half hours) was the need to sanction – indeed, to require in an appropriate case – the use of technology, whilst not implying that technology is all you need.   One issue is that the use of keywords is only one of the many technology solutions which may be applied to the task of finding the “right” set of documents – “right” being a neutral term which I use deliberately here (as we cannot do in the rules) to connote compliance with the definition of a disclosable document in a way which is proportionate.  Our wording must cover developments in search technology which are as yet unknown. Another issue is that technology alone, however sophisticated, is rarely, if ever, enough. You need a brain and the instructions for using it in this context. Read the rest of this entry »

Irish discovery rules embrace electronic documents

April 23, 2009

By happy chance, the discovery rules in Ireland have the same number as those in the Civil Procedure Rules of England & Wales. Order 31 of the Rules of the Superior Courts give the court the power to order discovery of documents between parties. You will spot even from that much that there is a difference from the CPR, under which standard disclosure (as we, stupidly, and alone in the world, call it) is the default in the absence of an agreement or order dispensing with it. In Ireland, a case must be made for it – not difficult in principle in most cases, I imagine, but an interesting and subtle difference of approach. Read the rest of this entry »

Catching up with KPMG

March 31, 2009

Part of the function of the e-Disclosure Information Project is to keep up with what the providers of software and services are doing. Given my emphasis on the human aspects of this business (which recurs in this blog and elsewhere in the form of questions like “Would you trust them with your client’s data? Do you like them?”) it is important to keep in touch by going in to see providers or welcoming them out here in Oxford. Since I neither buy nor directly recommend anything, these sessions are free of sales pitches, save in the subliminal and low-key sense that there is a mutual interest in sharing information.

I always seem to have a backlog, both of outstanding invitations and of writing about them. That reflects the balance between things I do directly for the Project’s sponsors, the wider objective informational aspects, the range of material which has to be read from the various jurisdictions in which discovery takes place, and the fact that there is always a conference organiser bullying for a set of slides.

KPMG comes to mind every day for the wholly obscure reason that my coffee cup sits on a tile which was the 1993 Christmas present from KPMG Forensic Accounting. It is functional as a mat, albeit that it shows a 1994 calendar. Like KPMG itself, it can claim longevity in a market which is full of new companies, staffed by people who were still at school in 1994, and in which corporate freebies have a marketing life of about ten minutes. I must have been on their mailing list on the strength of accounting negligence claims which I had run as a litigation partner (including JEB Fasteners v Marks Bloom in 1984 and Al Saudi Banque v Clarke Pixley in 1990, both still cited). Read the rest of this entry »

Explaining the Procrustean Bed

March 25, 2009

My post Zander sees his Woolf CPR predictions fulfilled refers you to an article by Michael Zander QC.

As an aside, a generation deprived of a classical education may be puzzled by Zander’s reference to a “Procrustean bed”, as I admit I was when I first saw it in a footnote to the old Rules of the Supreme Court. Lord Donaldson had used the expression in relation to the size of appeal bundles. I have to say I assumed in my ignorance that this was a geological metaphor. What he meant was that it was not necessary to pad out the bundles to the recommended size, nor omit necessary pages to meet the suggested size. The reference was to the apparently genial host Procrustes, who would invite passers-by to lie on his bed. He would then stretch them or amputate their limbs as required to fulfill his boast that his bed was just the right size for everyone.

One commentator refers to Procrustes drily as “the ancient champion of enforced conformity”. We do not, of course, want such precise conformity from our judges, ancient or not, but some degree of consistency would be nice, at least in respect of disclosure orders. We do not need the same answer every time, but the right answer, a proportionate answer, based on information provided by the parties “at the earliest practical date, if possible at the first Case Management Conference”.

The quotation comes from Paragraph 2A.2 of the Practice Direction to Part 31 CPR. That involves the exercise of informed discretion. Reading the damn thing and applying its provisions is not, however, discretionary.



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