I have already given an overview of the excellent ILTA INSIGHT 2008 conference in London yesterday (ILTA 2008 – not just another e-disclosure conference). Two sessions dealt with electronic disclosure.
The first was given by Mark Surguy of Pinsent Masons, His Honour Judge Simon Brown QC and me, and covered the advances which we are making in promoting awareness of e-disclosure to courts and practitioners. The second, which will be reported separately, concerned the management of risk in an e-disclosure context.
Mark Surguy kicked off our session with a summary of what we have been doing since he introduced me to Judge Brown last Summer. On that occasion, he said, I had argued that the rules were not being enforced adequately, that the courts’ discretionary and management powers gave the courts more power than they were using, and that judges needed to know more about the available technology. Judge Brown needed no persuading about these points and had taken every opportunity since then to inform himself about the technology.
Our focus has been on four rules in particular – the definition of a disclosable document in 31.6 CPR, the scope of the duty of search in 31.7 CPR, the disclosure statement in 31.10 CPR and the obligations to discuss electronic sources and agree formats for exchange in the Practice Direction to Part 31.
Mark Surguy and Judge Brown
We had a training session late last year on these points with a number of judges, and information sessions with local practitioners. That had all coincided with the Commercial Court Recommendations with their emphasis on close attention to the issues, and on a “surgical” approach to disclosure. We had between us done a number of conference speeches, podcasts and webinars and were set to do more over the year.
The next steps were a Technology Questionnaire and a draft order for directions which incorporated the requirements of the Practice Direction to Part 31 CPR, making it impossible for parties to pretend that they did not exist. Both of these documents are in hand.
I spoke next, taking as my theme the word “responsibility”. The US Qualcomm case had drawn attention to the need for a plan, a process, to make sure that discovery exercises were properly co-ordinated as between in-house and external advisers, and between the lawyers and the IT people. I referred to an article elsewhere on this blog (Guidance on the human factor in e-Discovery) in which I quoted an in-houser as saying outside counsel may know about my storage sub-systems but not how our humans work. These turf wars had to be addressed at the outset.
Qualcomm had secondary impact. Although it derived from an apparently blatant “oversight” (I say “apparently” because the battle is not yet over in San Diego), the Qualcomm case when reduced to its essentials, says “Lawyers get screwed for not disclosing documents”. This was not, I said, a particularly helpful message when we are trying to persuade lawyers that informed but broad-brush culling and filtering was the only proportionate way through masses of documents. I will be working with the Law Society to devise a Practice Note which covered these professional concerns.
I turned to disclosure statements which, I said, were often treated as a box-ticking formality, unchallenged by opponents or court, and skipping vital details needed for a proper cost-to-value analysis. It is too late anyway to consider the scope of the sources by then, since the disclosure statement is itself part of the list of documents, and the costs have been incurred by then. We proposed to tackle it by a technology questionnaire to be completed and discussed before the Case Management Conference. Questions also arose as to the proper person to give a disclosure statement.
The tighter regime imposed new duties also on the judge. Where lawyers found it hard to make decisions as to the scope of disclosure, the judge should be willing to shoulder some of the responsibility.
Lastly, the Commercial Court Recommendations provided expressly for senior management to be called before the court to be questioned as to their responsibility, particularly for costs and as to possible settlement. The court’s duties included the allocation of court resources as well as the containment of costs, and this was one way of making sure that someone senior at the clients had an overview.
Judge Brown concluded this session with some tough talking about lawyers who were not properly equipped to handle disclosure in the electronic age. He was not talking in this context about the lack of advanced skills or software applications, but about basic knowledge of the rules and a rudimentary idea of the components.
He had recently made an order for costs, payable into court in 14 days, against a party which had caused costs to be wasted by its failure to provide native format spreadsheets until forced to do so. We can expect to see more such orders, and willfulness is not a necessary component of them. If you practice in litigation where electronic documents are involved then you are expected to know the rules, and to get help, if necessary, to handle the practicalities.
Disclosure was for the benefit of the judge, and increasingly the judge would get involved in controlling the issues and deciding the scope of disclosure. Definition of the issues was central, and everything else hung on them.
He would always keep in mind the sum at stake, he said, and would not allow parties to incur costs which were disproportionate to that sum.
HHJ Simon Brown QC
The technology questionnaire and the proposed form of draft directions would be compulsory and would make the parties concentrate on the rules (to which these documents added nothing new) and on the things which really mattered to help the court provide justice proportionately.
Mediation is all very well – he was himself a mediator, he said – but a quick and efficient resolution by the court is often the only course acceptable to the parties. The overriding objective includes a requirement that the court ensures that technology is used where appropriate. The practitioners who come before the court must get to grips with that.
There was time for some questions. One picked up on something I had said about the use of concept searches in the course of culling and filtering document populations. To what extent were judges concerned with the accuracy of such searches from any given application or type of application? I said that no UK judge was likely to get into arguments about the minutiae of search algorithms as happens in the US – they would hardly think it proportionate to do so. They would generally take a common-sense approach based on the reputation of a leading product, perhaps with the aid of a visual demonstration such as Judge Brown had seen the previous day.
I did not add this at the time, but I imagine that if two firms demonstrated very different results from two such applications over the same data set, the judge would have to make a judgement – but only if he was convinced that something very material might emerge as a result.
Another question concerned metadata and the extent to which the courts were concerned with it. I referred to the Commercial Court Guide which, curiously in my view, states expressly that metadata is rarely considered relevant. Some would always be relevant – the document’s date for example is metadata. How far you go after that depends on the matters in issue – in some fraud or similar cases the detailed metadata is crucial; in most it counts for nothing. It did not usually cost much more to collect additional metadata, but that was no reason to inflict it on the other parties or the court unless something suggested otherwise.