On Tuesday I gave the first in a series of ten regional talks on e-disclosure for the Law Society to an audience of 70 or so solicitors in London.
My starting point was the CPR requirements and powers – what they are and how the courts are using them. In that context, I stressed two things – that none of the powers are new and that, whilst the Commercial Court may be the formal test-bed for more rigourous practices, the rules apply everywhere. There are new pending developments – the proposed Technology Questionnaire and the formalisation of (inter alia) the disclosure obligations in a standard draft directions order – but the defence “these rules are very new and there is no case law” is not going to find a sympathetic hearing at Case Management Conferences, not least because the relevant rules have been in place since 2005.
It is important, though, to emphasise that the corollary arising from the discretionary element in all this is that many cases really do not have enough electronic documents to warrant orders for electronic disclosure. Judges are seeking proportionate answers. It remains perfectly possible to argue successfully that the low volume of documents does not justify any departure from the traditional approach to disclosure. The point is that, in the new climate, you will have to argue it, by reference to the projected costs of one method against another, rather than be able to leave the subject unopened.
I covered the sources of disclosure material and showed what data actually looks like, showing how much existed in extractable form which would otherwise have to be typed up from documents which had been printed and copied at some considerable (and generally overlooked) expense. I deliberately used low-cost tools (eDiscoveryXpress from OutIndex, LexisNexis CaseMap and a hyperlinked Excel spreadsheet) to emphasise that the technology is within everyone’s grasp, and that the raw data is the same whether you use desktop tools or a world-leading hosted application.
The in-house versus outsourcing debate warrants a talk of its own, raising questions of skills, time and risk management as well as the outlay on tools. I went through the stages in the process and the resources which exist to help, whether they be applications to buy or services to rent. The reiterated message was this: pick up the phone and ask a supplier, or preferably two, what their charges would be for doing electronically what you are about to embark on manually.
According to Millnet (who, with Legal Inc are sponsoring this series of talks) many such calls are in fact requests to print the entire contents of multiple mail files. The easy (and for them most profitable) reaction would be simply to comply, checking merely that the firm had enough space to accommodate the resulting stacks of boxes of paper. What they and other responsible vendors do is to try and explain that an electronic alternative may cost a fraction of the copying expense, be deliverable much more quickly, and offer options for moving forward economically which paper does not give.
Judges are increasingly alert to this. They want input into the process on an informed (that is, costed) basis, and will be unforgiving in costs terms if it transpires in retrospect that there were more proportionate ways of dealing with disclosure.
Some of the technology, I said, is near-magical in its power, even to one who has used PCs since Bill Gates was young. You need to see some of it to understand that its magic lies not in purporting to take away your role (and your responsibility) but to be a support to your own thinking and analysis.
An audience of 70 from many different firms necessarily includes a range of views, abilities and experience, from those who know much of it already to those who say frankly that they have few or no cases which warrant any use of technology. I am not challenging that – you know your own case-load – merely suggesting that a few enquiries of suppliers may show that the threshold at which you make that judgement may be lower than you think.
Technology, logistics and making judgements you regret are a feature of giving lectures as well as giving disclosure. The venue, superficially very attractive, proved less so in practice. A long, narrow room put the front row too close for me to focus on and the back row too far away to see. The clip-on microphone proved patchy in performance and no contest for the air conditioning, leaving me crouched over a fixed mike which had been set up for a dwarf – an undignified and uncomfortable position for a long stretch.
Although I am happy to talk for hours on this subject without a break, I reckoned the audience might like a brief respite. The break proved unpopular with some, and led to a slightly rushed conclusion, so I won’t do it again. Another wrong judgement, intended to emphasise key points and save trees, was to distribute fewer slides than I displayed and, thanks to a late decision to change the running order, in a different sequence. Not popular, it seems, and it won’t happen next time.
Those points aside, the feedback was very positive, which I take to be a compliment to the perceived importance of the subject rather than to me. I have had two requests to do the same show within firms, where one has the luxury of tailoring the subjects to the audience. Any one of the topics covered could warrant two hours on its own – the difference between a forensic and a non-forensic collection of data, for example, deserves more than a side-reference. The objective in this talk was merely to indicate that different cases need different approaches, and to suggest that it might be useful to strike up a relationship or two with people to turn to in a hurry if you need to. Ask me if you want help with this.
Next stop Manchester on 3 June. There is a list of 2008 e-disclosure conferences and seminars on my web site, including the venues for the rest of the Law Society’s programme – although note that the one for Birmingham advertised for today will in fact take place in September.