What is the relevance to UK solicitors of a presentation on International Discovery delivered recently by an Australian in Las Vegas? The answer lies in 200 documents – for that is the new mandatory threshold in Australia for using e-Disclosure in litigation. Every litigator should go to at least one e-disclosure conference this year to find out about a set of issues and solutions which are universal.
Those of us interested in promoting cost-effective discovery / disclosure in litigation must keep an eye on developments in other jurisdictions. Knowing what works and what does not work in the US or Australia is important. Discovery is well beyond the Wild West stage, but it is still an area in which the frontiers expand very quickly. New problems meet new solutions, both technical and procedural, and we need to know what others are doing.
Seamus Byrne is COO of eDiscovery Tools in Australia which develops software to access and extract electronic evidence. Seamus is well-qualified to speak about the technical as well as the procedural aspects, with formal and practical qualifications in both law and computer forensics. He delivered a paper on International Discovery at the Computer & Enterprise Investigations Conference (CEIC) last week in Las Vegas, which surveyed the scene not just in Australia, the US and the UK but more widely as well.
The presentation can be accessed from here and is well worth looking at.
What is all this to do with UK lawyers with small to medium cases? Jo Sherman, the Chief Executive of eDiscovery Tools is closely involved in the development of the new Practice Note (equivalent to our Rules) due to take effect in Australia on 1 July, and Seamus works with her on that as well as on the company’s main software business.
Two things stand out about the new regime in Australia. One is the uncompromising position taken as to the duty of lawyers to know about the technology relevant to the efficient conduct of litigation.
“The Court requires legal practitioners to be appraised of the basic capabilities of modern technology in so far as it relates to this Practice Note or, where they are not so appraised, to ensure they have access to advisors who have the necessary skills and experience.”
Here’s a game. Substitute for “The Court”, the words “The law relating to professional negligence and the normal scope of professional duty”, and put “the CPR” instead of “this Practice Note”. Would you disagree with the resulting text as a statement of the duties of a UK litigation lawyer?
The second noteworthy feature of the forthcoming Australian rules is that they expressly mandate electronic discovery for all cases with more than 200 discoverable documents. There are two tiers of Document Management Protocols, with the Basic Protocol applicable to cases involving 200 to 5,000 discoverable documents.
I am about to start a regional tour on behalf of the Law Society covering both the CPR and the technology relevant to electronic disclosure. Amongst other things and bigger topics, I will explain how some low-cost tools can enable modest-sized firms with small cases to capture, analyse and exchange list of documents information.
Specifically, I will explain that OutIndex provides an extremely cheap desktop tool called eDiscoveryXPress which will extract all the document information you need and more from mail folders and document directories. I will show the resulting data in an Excel spreadsheet with the descriptive information hyperlinked to the document. I will explain how CaseMap can be used as a “spreadsheet with bells on” to analyse the documents as they relate to the issues, as the Rules require whether you have 200 or several thousand documents.
Just as importantly, I will emphasise the second part of the quotation above from the Australian Practice Note, the bit about practitioners’ obligations “where they are not so appraised, to ensure they have access to advisors who have the necessary skills and experience”. We may lack here the express obligation to use third party advisers (as well as spelling them differently) but the solicitor who was heard recently at a CMC saying “what is e-disclosure anyway”, or the one who argued that “the rules about disclosure are all very new”, will find there is plenty of advice and help available in what is a very competitive market.
There is information about the Law Society’s e-disclosure sessions in my post Law Society regional e-Disclosure training which includes a link to the booking information.
As to Jo Sherman, I will see her at the IQPC Information Retention and E-Disclosure Management Conference in London on 22-23 May. She is speaking with Vince Neicho of Allen & Overy on Adding Value, Increasing profit and reducing cost in your e-disclosure practices and I am a discussion facilitator later on the same day. Before you dismiss such conferences as being irrelevant to your own practice, remember the 200 document threshold which Jo has pioneered in Australia.
On the same theme of relevance to the wider profession, Vince Neicho and I are amongst those who have been asked by Master Whitaker to draft a Technology Questionnaire for use ahead of Case Management Conferences. The Senior Master is himself taking part earlier in the day in a panel discussion What is expected by the Judiciary?. HHJ Simon Brown QC is part of that panel, reprising for a London audience the debate about proportionality which he had in New York in February with US Magistrate Judge Andrew Peck (see UK judge flies e-Disclosure flag in New York).
I claim some credit for the fact that many of this year’s e-disclosure conferences have topics of relevance to general litigation practitioners (that is, the organisers have all asked me what should be covered, that is what I have suggested, and that is what they all put in their programmes). It did not, in fact, need much prescience to know that this is where the focus is for 2008, for litigators and for their clients.
The fact that, as Seamus Byrne shows us, the same problems are being tackled in Australia, the US and elsewhere does not make them irrelevant in a UK regional court. The label “international” does not make them exotic, but universal.