A second talk to Law Society members in Birmingham revealed more enthusiasm for electronic disclosure than one might expect given the amount actually done. How do we translate that enthusiasm into action? The only action required is to ask a supplier or two for quotations to inform your decision-making
It was back to Birmingham last night for the second round of talks about e-Disclosure given by me and His Honour Judge Simon Brown QC. As before, the event was organised by the Law Society’s indefatigable West Midlands Regional Manager, Clive Black, and hosted by Pinsent Masons, whose Mark Surguy originally introduced me to Birmingham.
We had an audience of more than 30, which means that over 90 people in all have turned out for these events. They came mainly from local firms of all sizes, with some in-house lawyers amongst them.
These talks are introductory in nature, and distinct from the harder-edged practical-cum-legal training sessions which I am about to embark on around the country for the Law Society. I opened with a summary of what we were trying to achieve – the spread of information about the rules, the available technology, and the way in which the courts are taking a firmer grip on management of cases.
I make three main points on these occasions. One is that it is disclosure, not electronic disclosure, which is the core problem. There are a lot of documents. You can print them all and type up a list of them, but you only have to describe that to see that this is going to be expensive; you can ignore them, but this hardly complies with the rules; or you can accept that the sensible way to disclose and exchange quantities of electronic documents is electronically.
The second is that the upshot of an investigation into electronic sources may be that there are none worth worrying about – but you can’t conclude that, still less persuade the court of it, unless you have investigated what there is.
The third is that there is plenty of outside resource to help even the smallest firm. Solicitors outsource other things – to counsel for example, which gives them a reach beyond their own skills and resources. They can outsource the handling of their electronic documents as well – not the decision-making or the legal and tactical control, but the extraction of data and the hosting – and put themselves on level terms with much bigger firms.
Judge Brown made it clear that he has no time for either of the usual extremes – those who disclose everything in sight are as bad as those who quietly “overlook” the fact that their clients must have e-mails and other electronic documents. What he wants is to know what exists which supports or undermines any party’s case, what the likely evidential value is of any of the sources, and what it is going to cost to extract any part of it. Further, he wants to identify the issues which matter, and limit disclosure – for now anyway – to the sources which will help him find the facts which underlie those issues.
This is a challenge to all sorts of things – it is very different, for example, to the idea that disclosure is a single seamless stage, a formal hurdle which happens in its due place in the timetable. It subverts the idea that a big, rich client can drown smaller opponents with large amounts of unfocused disclosure. It also draws attention to the fact that court users do not have an unfettered right to take up as much court time as they wish – one of the factors which comprise the overriding objective is the court’s obligation to allot to a case “an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases”.
Judge Brown referred to the Commercial Court Recommendations, which support what he says about identifying key issues and about limiting disclosure to what is needed to deal with those issues. The word used in the Recommendations to describe the proper approach to disclosure is “surgical”, and it is as relevant an approach in the Mercantile Courts and in any other court as it is in the Commercial Court, pro rata to the circumstances.
The discussions over drinks afterwards are the bit which interests me. One solicitor drew a parallel with the way he handles his accounts – he outsources them to Quill’s Pinpoint who, for a fixed monthly fee, just deals with them whilst he gets on with the business of being a lawyer. He remains responsible for them, but the dull mechanics are dealt with elsewhere. He instantly saw the parallels with delegating the drudge part of disclosure for a defined cost leaving him to give the legal input.
Another discussion centered on the apparent downside that getting supplier quotations means that you have to quantify the costs up-front and commit to them. There are two points here. As to quantification, is it in fact such a downside to identify the costs up-front, and to compare different ways of doing the job? As to the commitment, there are two elements to consider – the up-front cost of getting the data in, and the continuing costs of keeping it for as long as the action runs. You commit to incurring the costs of collecting and extracting the data anyway by one means or another as soon as you issue or defend proceedings, so the only question is – which way is cheaper? Any means of storing data involves some kind of cost, including the incalculable cost of periodic trawls for documents related to an issue or a witness. The hosting cost must be considered in the context of the time to be saved in future analysis and retrieval.
There is no single answer to all this. What appears to concern Judge Brown is that no-one is even asking the questions in advance of plunging into disclosure.
The elephant in the room is the concern that fees would go out of the door to outsourcing suppliers which would have stayed in the firm if disclosure had been done in the traditional manner. That may be true. If your calculations show that the staff you can afford to keep can do the work which is available, at a cost which the client will pay, and at a profit which satisfies the partners, then the incentive to send work out diminishes. The calculation is incomplete, however, if you do not factor in other things – the chance of winning more work for example, or the amount of time written off or not recorded, to say nothing of the quality of the end-result or, indeed, the quality of life. It is not a useful calculation at all if it does not consider alternative ways of doing the work.
The consistent stumbling-block seems to be the apparent difficulty of finding out what those alternatives are. Whenever I speak to suppliers (as I do, all the time) I ask how their product or service scales down to smaller cases. The consistent, and usually credible, answer is that most of them do address the needs of firms new to electronic disclosure with smaller cases and budgets to match.
The biggest single benefit of events like yesterday’s is to get this message across and to try and encourage firms to pick up the phone to suppliers. Part of my role is to marry up the firms who would do something if they knew how with the suppliers whose services exist for the purpose. The aim is to convert my generalised assertions about comparative costs into two sets of figures.
Until you hold in one hand your estimate of hours times charging rates, and in the other a quotation from a services provider, you cannot say for yourself, still less for the client or for the judge, what is the most cost-effective way of tackling electronic disclosure.