Practical Guidelines for e-Disclosure Management

Litigation solicitors in private practice and in-house lawyers would have done well to be at the Ark Group conference last week. Run over two days within spitting distance of the Tower, it had the title Adopting Practical Guidelines to e-Disclosure Management for the Legal Profession. Practical it was, as well as conveniently located.

Its supplier sponsors included FoxData, Autonomy, CaseLogistix by Anacomp, Guidance Software and LexisNexis, all of whom are also sponsors of the e-Disclosure Information Project which I run. Part of the Project’s aim is to make connections between suppliers whose service or software offerings are in different parts of the wood – between them, these suppliers and their applications collect data, process it, host it for review, help with analysis and make it available for exchange with others. There is overlap and competition between them, but also a common interest in helping practitioners – and judges – understand what is available to tackle the problems of e-disclosure. Part of my role is to help the would-be buyers see both the wood and the trees.

The chair on Day 1 was Janet Lambert of Barlow Lyde & Gilbert. It is no trivial task (I speak from experience here) to chair a day’s conference, introducing the speakers, getting them to finish on time and summarising what has been said at the end. Everyone else can sidle out for a chat or a cigarette or both, but the chair is stuck in the chair all day. Janet did it very well.

I had to miss the opening sessions in order to discuss our joint session with my co-speaker, His Honour Judge Simon Brown QC. Judge Brown and I last spoke together in front of the Designated Civil Judges and then the Specialist Civil Judges at the beginning of July, and we needed to catch up.

I was sorry to miss barristers Matthew Lavy and Michael Taylor, both of 4 Pump Court, who spoke on changing mindsets to encourage a pragmatic and responsible approach to e-disclosure. Matthew Lavy was one of the joint authors of an article in the SCL’s Computer & Law Magazine last year which described his experiences on the receiving end of a very large, and apparently undiscriminating, e-Disclosure exercise. The article prompted me to write a three-part article called E-Disclosure – Needles and Haystacks. The SCL article correctly asserted that it is the practice, not the rules or the technology, which causes most of the e-disclosure problems. That is one of the principle planks on which I speak and write, and it was good to meet Matthew Lavy, even if I missed hearing what he had to say.

I also missed a session by Paul Motion of Brechin Tindal Oates in Scotland on the subject of cross-border UK issues and the Scottish Court Technology Forum. My planned visit to Edinburgh over the Summer was edged out by my trip to ILTA in Dallas via Pasadena. I hope to go up shortly to find out what is different north of the border, and why.

The next three sessions were sturdily focused on the CPR and the practice. Judge Brown and I spoke about preparing judges to be equipped to make effective e-disclosure decisions. We ran through the history of our joint involvement in talking to judges and the role of the e-Disclosure Information Project in bringing courts, practitioners and suppliers together to work towards more efficient data-handling in case management.

We reiterated that the rules were adequate to allow rigorous case management but that they were not used to their full potential. Judges had hitherto had no opportunity to find out about technical developments – and how could they in a world in which both the technology and the thinking advanced monthly? That was the enormous benefit of having suppliers on-side.

There was a fear of the US experience which was misplaced, I said, and anyone who thinks that the US provides a model for our own path misunderstands one or both of the systems. It is part of my role to try and make sure that we do not go down the US route, whilst applying the best of the US-derived technology and thinking for our own, much narrower, disclosure purposes.

We gave a précis of the two most useful cases: Hands v Morrison Construction 2006, which showed a judge rolling up his sleeves and getting stuck into the detail, informing himself so that he could make a proportionate decision as to what was needed from disclosure; and Nichia Corporation v Argos 2007 where the Court of Appeal reviewed the principles of disclosure and considered the distinction between an unattainable perfect justice and a rough justice which might lose some granularity but which got the case heard fairly and quickly.

Judges don’t need to understand HOW the technology works, but they need a check-list of things to consider and a broad idea of what was possible – near-deduping, for example, has immense power to cut down the volumes which might otherwise be painstakingly read. If neither of the parties nor the judge has any idea that these tools exist, it is not surprising that orders are still being made for “standard disclosure in 28 days” or whatever, without regard to the options or the implications.

That led us to the developments in practice and procedure which are likely to move things along. Master Whitaker has asked a small group of us to devise a Technology Questionnaire which will force parties to consider what their sources are by the time the defence is served. Judge Brown has circulated a draft order for directions which recites the primary obligations so that, at the least, they will not be overlooked at a CMC. These things, when added to increasing judicial awareness, will change things.

The next session continued the same theme, with Judge Brown teamed up with Vince Neicho of Allen & Overy on the subject of inter-party co-operation. This, they said, was not just a nice idea, but was required by the rules. Issues and timescales must be clearly identified by the Case Management Conference, as well as practical details as to exchange formats and potentially difficult data.

The speakers’ enthusiasm for co-operation does not (or, at least, mine does not) exclude the potential for running rings round the other side if their non-compliance deserves it. The rules are there, in part, to level the playing field and to make sure that big, rich parties do not trample on smaller ones. If a firm which ought to know better does not play its part, and time and costs are wasted thereby, then there are remedies in costs and in strict time-limited orders which can be invoked by a party which has complied. The offender cannot bank on not being struck out or hit with an order for costs payable in 14 days.

Vince Neicho followed this session with a mini-workshop on agreements and protocols for data exchange. He recounted the history and purpose of the work which LiST (the Litigation Support Technology Group) has done to smooth the process. A protocol in this context is a kind of Esperanto or lingua franca – an intermediate format which all players agree on. Without such a protocol, each firm has to write a custom filter for exporting and importing electronic data for each firm it deals with, and sometimes a different one for each case. If everyone has agreed on a standard middle language which suits them all, each has to write only one filter in each direction.

This subject aroused particular interest amongst some of the suppliers present. The concepts go wider than the exchange of data on production to opponents as part of actual disclosure. The smooth transfer of data between platforms and suppliers – say from a data collector to a review application with some processing on the way – is usually easy to do but hard to visualise for an audience not familiar with the idea that senders, recipients, subject lines etc are just units of data.

Day 2, well chaired by Lee Gluyas of DLA Piper UK LLP began with a talk by Mark Surguy of Pinsent Masons in Birmingham, a strong advocate of anticipatory work between law firms and their clients to be ready for the disclosure aspects of litigation. I first met Mark after hearing him speak eloquently on this subject last year, a meeting which led to his introducing me to Judge Brown in Birmingham.

His theme then was the law firm’s own readiness, and specifically knowing who the suppliers were and forging links with a couple of them so that the firm was able to jump to as soon as instructions came in. This time, he talked about proactive advice to clients under the title Litigation readiness: promoting strategic electronic data management for clients as an added-value service. I have long suggested that law firms are missing out on a new practice area here, a niche which will otherwise be filled by direct liaison between companies and suppliers – that is one of the reasons why the suppliers go to the conferences – and by companies recruiting their own in-house experts, as is happening in the US.

Mark Surguy focused more on what actually needed to be done – promoting awareness within clients of what they might expect from a court or regulator and how their own systems and procedures can be made ready. His speech deserves more space than I can give it here, but the over-riding message was that the lawyers and the technology experts need to work together.

Reza Alexander of DLA Piper took us on a different tack, but one with the same underlying theme – where should the work be done? His subject was Legal Process Outsourcing, the idea of putting part of the legal function out to places (such as India) where good quality work can be done for rates very much lower than in the UK or US.

Reza had done an electronic survey of reactions to this subject which he summarised for us. There are issues ranging from the legal (privacy and data protection concerns), to self-interest, to worries about professional obligations and quality, and to the undoubted stigmas which attach to delegation in this way. There were no firm conclusions, but Reza’s bullet points in the conference brochure referred to “determining when the balance will tip”.

I am interested in this mainly as a symptom of Professor Richard Susskind’s predictions in his book The End of Lawyers to the effect that legal functions will become fragmented and devolve, in part at least, to others with specific skills.

The last session I was able to attend was, in many ways, the most interesting. It was a panel discussion led by Lee Gluyas involving three litigation support managers (Reza Alexander of DLA Piper, Adam Page of Clifford Chance and Mark Simmons of Ashurst) and two suppliers (Matthew Grant of LexisNexis and Greg O’Reilly of LDM Global).

They looked from their different angles at the choice which law firms face between taking as much as possible of the litigation support function in house and outsourcing it to specialist suppliers. Time, cost (both investment and matter-related costs), in-house skills and evaluation of risk all played their part from the law firm perspective. The size of a case was one, but only one, of the factors to be taken into account.

There was more in this than I can do justice to here, and I will write about it separately. The element which ran through many of the sessions (including my own) was the dominant message in this session as well – get to know suppliers in the abstract, as it were, in anticipation that you may need to choose one for a particular purpose, in a hurry, one day. It is not just their skills and resources which you look at. Are you happy with their terms and conditions? Do you trust and like them?

I had to leave at that point. There was a mass of thought-provoking stuff here, much more than I can record. As always, what was said from the platforms was only a part of the value to be gained by being there. The chat over coffee and lunch, and what will follow from the exchange of business cards, was just as useful.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Autonomy, Case Management, CaseLogistix, CaseMap, Court Rules, Courts, CPR, Data Protection, Discovery, DocuMatrix, Document Retention, E-Discovery Suppliers, eDisclosure, eDisclosure Conferences, eDiscovery, Electronic disclosure, Forensic data collections, FoxData, Guidance Software, LexisNexis, Litigation Readiness, Litigation Support, Part 31 CPR. Bookmark the permalink.

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