His Honour Judge Simon Brown QC told a London conference audience what the UK courts expect from those who appear before them when electronic disclosure is a big element in a case.
I have written separately about the conference organised by Marcus Evans in London on 14-15 January 2008. His Honour Judge Simon Brown and I were speakers on the second day with a session billed as The Mutual Expectations of Clients, Lawyers and the Courts.
The first day included two sessions which prepared the ground which we had proposed to cover, not least a very interesting Panel session on reducing the costs in which Judge Brown took part and which had ranged widely. That allowed us to take a less structured approach than had been planned.
I opened with a quick overview of the background and the formal position. In the US, the 2006 amendments to the Federal Rules of Civil Procedure are a topic of major interest for lawyers and their clients. There is a mass of case law and comment already and they have changed the way businesses manage their electronic documents. A recent survey suggests that 1 in 5 businesses have settled lawsuits rather than face the cost of complying with court rules and active judges.
There are no such expectations in the UK. Although we have a set of rules which are accurately tuned to the problems, few practitioners or judges even know they exist.
The problem was recognised in the Commercial Court Long Trial Recommendations published in December 2007. The introduction included the following:
.. we concluded, sadly, that in some cases either the parties or judges or both were not enforcing provisions in the Civil Procedure Rules …with sufficient rigour. We concluded that there needs to be a re-education programme for both practitioners and the Commercial Court judges, to remind them of the procedures and powers that are already in place …and to show how they might be used.
The word “re-education” rather overstated the position, I said. Although e-disclosure sits at the junction of two very technical subjects – court rules and information technology – we expect judges to pick it all up on the job without any training. A recent report by KPMG highlighted this as a key issue.
I said that I had recently begun to give judges such training, helping them to know what the problems were, what solutions exist and how the rules can be used to control the costs and expense of disclosure. What I said to them and to the conference audience about the relevant Rules is summarised at the end of this note. What matters rather more is what Judge Brown said about their application.
He had by then sat through several informative sessions about the volumes and the difficulties, and about the tools and the processes which were applied to solving the problems. Judges normally get none of this as part of their training to equip them for making the decisions affecting businesses.
It seems to me that a smattering of knowledge about both the data management problems and the solutions is just as important as a keen understanding of the Rules.
His Honour Judge Brown QC
Judge Brown began by saying that the whole purpose of the disclosure exercises was for the benefit of the judge.
In telling us how he managed disclosure in his court, he was not setting out any new principles. The rules, the discretion and the management powers were the same everywhere, moderated, of course by considerations as to what was proportionate in any case. We needed the same practice throughout the courts to achieve consistency.
Judge Brown explained that the Commercial Court, the Technology and Construction and the Mercantile Courts all managed their own cases. That gave these courts the power to decide things in different ways within the rules.
The judge, he said, was the end user of all the activity which we had heard about at the conference. His primary job is fact-finding and then applying the law to the facts.
He referred to the factors implicit in the overriding objective. If an order was properly made on the basis of one or more of those factors, then it was unlikely to be disturbed by the Court of Appeal. These factors included words like “saving expense” and “expeditiously and fairly”.
What I want to know, he said, is this: what is the case about? Which of the pleaded issues really matter in getting to the heart of the dispute? Can we split the case up and limit disclosure to the subjects which matter, or which matter most? Parties could agree about this, but the court was not bound by their agreement if a better course appeared.
The key elements from the rules were quite simple. Parties are required to disclose only documents on which they relied and those which adversely affect their own case or which support or adversely affect another party’s case. The word “relevant” is irrelevant.
Judge Brown said he was horrified at the scope of some of the forensic collection exercises which had been described. He could see that they were necessary for some cases but, as a judge managing disclosure, he would expect parties to take note of Paragraph 2A.4 of the Practice Direction to Part 31 CPR which sets out the factors relevant to the reasonableness of the search. These include the nature and complexity of the proceedings, the ease of retrieval of documents and so on. There would be a close focus on what was necessary to prove the issues and what the cost would be of getting at them.
A Case Management Conference is a business meeting – no wig or gown but a business-like attention to the ease and expense of retrieval. If the lawyers were not able to address these things themselves then they must take advice from someone who could, and produce information about the costs involved in any exercise which was thought to be warranted.
Solicitors were naturally concerned that they might get sued because they did not search some source. They must do what any reasonable person would do, and reasonableness was to be judged by what the rules say, including the passages about cost and proportionality.
Judge Brown said that some lawyers seemed to him like the 49’ers rushing off in search of nuggets. Some cases warranted that. Most did not.
This is a summary of what I said to the audience about the Rules as a background to Judge Brown’s talk.
The definition of a document is very wide, the range of potential sources in infinite and the duty to disclose is strict. On the other hand, the definition of disclosable is narrow (“only” documents which advance or damage the position of the giver or another party) and requires genuine selection. The obligation – which I saw more as a benefit – to narrow the scope comes very early in the process.
The potential conflict between broad and narrow which this sets up can only be addressed by splitting the exercise into stages – identification, collection and review, with the Case Management Conference in between at which the judge can give an informed view – informed because the Practice Direction to Part 31 requires the parties to know their sources, to discuss them in advance and to involve the court in case of difficulty or disagreement.
This kind of selection is expensive, especially if done in a hurry, and lawyers do not like uncovering anything about their sources until they have reviewed them. There were objections to the up-front costs which this entailed.
What, however, were the costs of dragging all that potentially irrelevant material around with you and making the other side do the same? There is something to be said for limiting the quantities put into play by both parties – not least that word only in the definition of a disclosable document.
The rules expressly build proportionality into the search process. You do not have to trawl through documents if it is reasonably likely that the cost of doing so will be out of proportion to the value of the claim or the significance of what will be discovered.
The importance of the disclosure statement has been overlooked. The giver must not only know about the technical aspects of the sources but also about the likely importance of what may be found. The court can require that the disclosure statement be given by someone else or that it be verified by affidavit. Who in your company, I asked, will be the right person to give such a statement? Are your systems and processes good enough to enable anyone to do it at short notice?
Lastly, I pointed to the overriding objective and to the court’s powers of management. These, I said, gave the court wide-ranging power – and indeed a duty – to control disclosure rigourously.
If this sounds like a breathless scamper through some very significant rules, then that is what it was. The important thing for the audience – and principally for the clients who would make the decision to litigate – was not so much what the rules said as what use would be made of them to make litigation commercially viable.
And that is just what they got.