Wolters Kluwer, owners of CT Summation, invited me to speak on 20 May as part of their series of thought-leadership talks. The subject was e-Disclosure costs and responsibilities: a primer for in-house and external counsel. I had adopted the theme of responsibility as my central prediction for the year (see Predicting litigation responsibility for 2008), and I spoke briefly about it at ILTA Insight 2008. I was glad of the opportunity to expand on the theme.
The seminar was at One Aldwych, which I commend unreservedly as a venue for this kind of event. It was not just that it was smart, comfortable, contemporary and convenient, but that everything worked. Nigel Murray of Trilantic opened with a summary of the issues, and acted as chairman of the session.
I described briefly the e-Disclosure Information Project, its origins in a chance introduction to HHJ Simon Brown QC in Birmingham, its role as a source of objective information about e-disclosure for judges, suppliers, lawyers and clients, and its support by sponsorship from industry suppliers. What we had started in Birmingham had coincided with the Commercial Court Recommendations. Both imposed new levels of responsibility at different levels, not excluding the judge himself.
I hung the responsibility theme on six apparently disparate points – the Qualcomm case, the disclosure statement, the Australian Practice Note, the professional duties of solicitors, the burden on judges and the responsibilities of a litigating company’s senior management.
Although the Qualcomm case in the US had hit the headlines because of the $8 million sanctions and the reporting of a number of attorneys to their professional body, the real importance of the case lay in the judge’s emphasis on the better management of future cases and on the drawing up of clear lines of responsibility between the players within and outside the company.
That did not apply only to very large cases in the far side of California. The UK court rules (Rule 31.10 CPR and Paragraph 4.1 et seq of the Practice Direction to Part 31 CPR) require that someone give a disclosure statement, describing what sources have been investigated and which have not. The disclosure statement was not, I said, a mere formality, but involved a personal assumption of responsibility by someone who needed both IT skills and knowledge and an understanding of the issues.
I referred briefly to the new Practice Note due to take effect in the Australian courts on 1 July. Its express recital that lawyers are expected to understand the basics of relevant technology, and to get outside help if they lacked such understanding, may in fact add nothing to the English law of professional negligence, but it served as a reminder that ignorance of the tools of the trade was no different to ignorance of the law.
That led naturally to a mention of the changing scope of a solicitor’s professional duty in a world where reading every document was often not an option. That did not require a deep understanding of the technology, but it did require a knowledge of what existed as solutions.
Then to the judge. If he is to make proportionate orders, then the judge must be equipped to know what the options and implications are, not least the costs implications of one route rather than another. That was a shared burden – the judge had to have the facts but he also needed to know what he was not being told and flush it out, and to share the burden of deciding what mattered and what did not.
Lastly, the client’s senior management clearly had responsibilities, to the court and to the owners of the business. Those responsibilities had been given new emphasis by the Commercial Court Recommendations, which devote a whole section to this. Senior executives might be hauled up to explain themselves both as to costs and as to settlement and this (like everything else in the Long Trials Recommendations), might happen in the lower courts, not just in the Commercial Court.
Much of this related to disclosure of all kinds and not just to electronic disclosure. One of the recurring themes is that the need to handle increasing volumes of documents, and mainly electronic documents, is not just a court-driven duty but a fact of business life. The court’s role is to find proportionate ways of handling that, and this necessarily draws attention to duties which are not new, but which are substantially increased by an inherent mismatch between volumes and the value of the claim.
My thanks again to CT Summation for the opportunity to speak on this subject and to Caitlin Murphy and Ranji Ragbeer who organised it.