On my way to London yesterday to chair the Ark Group ediscovery 2010 conference, I read about the deletion of e-mails by an aide to the Qatari royal family (see Guardian article here). The allegation is that 19 e-mails referring to Prince Charles or his private secretary were deleted to make them unavailable in contract proceedings brought against the family’s development arm. People seem to forget that it is inherent in the nature of an e-mail that at least one other person has a copy of it. This is a bit like being an AIDS awareness campaigner in the late ’80s – however wide the publicity, and however many celebrities died, people carried on behaving as before. The excuse “I was just tidying up my InBox” is as valueless as “I only slept with her once”, and the odds of getting caught out are rather higher – being selective in your choice of partners is a good thing, whereas selective deletion of emails is not, not in this context anyway.
Where do you pitch the message for the audience at a conference like yesterday’s, where the range of knowledge and understanding is both unknown and variable? One of my standard slides, always near the top of the deck, used to be one one with a definition of edisclosure. I have recently removed it, reckoning that the chapters dedicated to the subject in each of Lord Justice Jackson’s reports, when added to the eye-catching cases, made that slide redundant. Apparently not, judging by one of the questions from the floor. How much does one say about the available technology? I used a composite slide covering all of it in one go, but many of those present would have appreciated the full set. Do people know about the existing practice direction, let alone the pending one? It seems that the PD remains as obscure as ever, and it is as if Digicel v Cable & Wireless and Earles v Barclays Bank had never happened.
It fell to me to deliver the keynote speech, standing substitute for the advertised speaker from the Law Society on the future of the legal profession. No one from the Law Society could be found to speak, apparently, and having read Richard Susskind’s commentary on the recent Law Society Access to Justice Review (see Does the Law Society know there’s an internet generation?, perhaps that was just as well. The profession will not have a future if its professional body devotes only half a page out of 60 pages to the subject of technology. With many judges in denial as to the existence of electronic documents and a Law Society looking eagerly forward to 1997, litigation solicitors must look after themselves.
It was to litigation solicitors that I addressed my talk, with an abbreviated canter through the rules, the Jackson Report and the proposed Practice Direction and ESI Questionnaire. As I have said, I dealt with the technology in a single slide which lists the various software functions – de-duplication, clustering, relevance etc – and stacks screen-shots of well-known applications over the rest of the screen; in retrospect, we could have done with a whole session devoted to this.
The “future of the profession” part focused on the rebalancing of roles between client, solicitor and technology consultant. The risk, I said, was of disintermediation, that is, that the solicitors lose their role as project managers and become bit-players in a process run by the clients. The objective, I said, must be to make it not worth the clients’ while to go down this route. Smaller and more agile firms who were willing to work with a technology provider to devise a process (“this is how we do things here”), could take work away from bigger firms. You had to get good at using the rules, particularly the discretionary element in them, to shape disclosure in the way which was best for the litigation as a whole, and to couple that with sensible use of the available technology. That way, we might attract the clients back to using litigation to establish their rights.
One of the attractions of this conference is the high proportion of lawyers who speak at it. Richard Harrison of Laytons, Jeremy Marshall of Irwin Mitchell and Andrew Moir of Herbert Smith gave us thoughtful talks on different aspects of the rules and practice. Vince Neicho of Allen & Overy promoted the cause of active case management by reference to the proposed ESI questionnaire and to Senior Master Whitaker’s judgment in Goodale v the Ministry of Justice. Rob Brown of First Advantage, who were sole sponsors of the event, spoke about managing e-disclosure in an international dispute.
The closing session was called Earles v Barclays Bank: a client’s guide to avoiding adverse inferences, wasted time and costs and damage to reputation. His Honour Judge Simon Brown QC, whose judgment this was, was held up in his court and unable to be there at the start of the session. I must pay tribute to Richard Harrison who, on no notice at all, took on the lawyer role in the panel, whilst Vince Neicho dealt with points relating to procedure and case management. I gave out the questions, fortified by my notes for Recommind’s webinar on the same subject on the following day. Simon Brown was there for the last 30 minutes and no-one will have been left in doubt that Earles requires us all to raise our game as to the rules, and requires the clients to pay more attention to the in-house systems which should enable them to produce the documents needed for a just conclusion.
There were quite a lot of faces which we have not seen at conferences before. Rob Brown’s conclusion, with which I agree, was that we were not moving backwards, as I had at first assumed, but were reaching new audiences who had been put on notice of the risks posed by the recent judgments. Those risks, as I made clear, went beyond the mere risk of screwing up the litigation; there was an overarching risk that there would be no litigation to do. What would be worse, I wonder – to find yourself unclothed by competence in front of a Judge Brown, or to come before one of the (all too many) box-ticking judges whose idea of active management is to send the parties away to resolve matters themselves? Many, I think, would rather rise to the challenge of the first than to see their case mired in expensive disclosure disputes because the judge could not be bothered to manage it.
My thanks to the speakers who kept us engaged and kept to time. My thanks also to Venus and Sara from Ark Group who put the show on the road and kept it there. I commend, incidentally, the conference venue at Holborn Bars for its convenient location, congenial rooms and excellent restaurant.