The reactions at an e-disclosure conference point up the value of getting an idea of the likely costs before deciding that electronic disclosure is not for you. You cannot assess proportionality without doing so, and may be surprised by the answer.
On my first slide at an all-day seminar for CLT Conferences this week, I had a quotation from the Commercial Court Recommendations.
“Automatic disclosure will not take place until after the CMC, which decides on the scope of disclosure” [Para 68a]
One of the delegates immediately asked “Is this just about the Commercial Court then?”, putting his finger straight onto the central difficulty in trying to raise understanding about electronic disclosure, even with an audience which self-selected as wanting to know about the subject.
No, it is most certainly not just about the Commercial Court, nor only about big litigation between big, technically-skilled firms. Indeed, the implied assumption that “big” and “technically-skilled” go together highlights another point here – there are many big firms who have no idea about electronic disclosure, and plenty of smaller firms who do.
The fact is, though, that it is the Commercial Court which has made the running in this and in other areas of case management. It is inevitable that the people who have the experience needed to talk about the subject are those who come from big firms. It is not surprising that those who sell solutions into the market emphasise their ability to handle big volumes. The overall impression that e-disclosure is irrelevant to smaller firms is a hard one to crack.
Our audience included representatives from exactly that constituency which will lead the drive from the practitioner side towards nimble use of technology for efficient handling of disclosure – firms whose reach extends beyond their size because they are alert to the potential which technology offers to take on bigger cases against firms larger than they are.
My role as a speaker was to provide a framework, to identify what the rules actually require, to talk about how the Case Management Conference could be used to shape disclosure as you want it, and to outline what is happening on the procedural side which will bring changes over the coming months.
As chairman, I introduced a series of experts in particular fields.
Barrister Stephen Mason, the editor of Electronic Evidence – Disclosure, Discovery and Admissibility talked about the legal aspects of collecting documents and data, and the implications of not doing it properly. The UK case law is sparse.
Nigel Murray of Trilantic spoke about the practical side of collections. There are decisions which may have to be made urgently at this end of the process. How much do you collect? How important is it to capture the metadata which lies behind the documents? Top of my own list is this: who will you ring to do the collection for you who can be relied upon to help plan the process on an informed basis and with a long-term eye, and do it cost-effectively?
Vince Neicho of Allen & Overy told us about the practicalities of the exchange of data and the agreements which must underlie that. One of the points which emerged from that is that the disclosure data – the rows and columns of information about documents – can be exchanged between an Excel spreadsheet and a top-flight litigation system. It is not the scale but the process which matters.
Vince and Mark Dingle of Simmons & Simmons spoke about the role of the litigation support manager as the interface between the lawyers and the technology. They recognised that few firms have the luxury of a full-time person in this job. The main point is to identify the job functions as a first step towards deciding what combination of internal skills and external help may be needed to run disclosure effectively and efficiently.
At the end Mark Dingle talked about filtering technology, illustrating his points with the help of Mike Brown of Epiq Systems and Epiq’s review application, DocuMatrix. Examples ranged from simple keyword searches to sophisticated concept searching, where a handful of documents identified as representative of a kind are sent off to trawl the collection to bring back documents which match them.
In between, the speakers, joined by Matt Grant from LexisNexis, convened as a panel to answer questions.
I talked to as many people as possible over lunch and in the breaks – the ideal conference to my mind has a ratio of roughly two-thirds formal sessions to one-third formal chat, but I am told that this is not what delegates like, so conversation time was limited. One reaction was that what I had said about judges wanting involvement in the scoping of disclosure was not the common experience, even where there were, or should have been, issues to discuss. The other was that many big firms seem no more ready to comply with the rules than smaller ones and that delegates found themselves making the running on this front.
We will, I think, see a change on both fronts by the end of the year. The forthcoming technology questionnaire (the latest draft of which slipped into my InBox as I typed the last paragraph) will become a required part of the Rules in due course. It will be a perfectly proper answer to the questionnaire to say that your client has no electronic sources, but it will make practitioners – and judges – apply their minds to the subject.
Similarly, the draft order for directions now being used by a number of District Judges and Mercantile Judges requires all those involved at CMC’s to consider what to do about electronic sources of documents. It does little more, in fact, than restate what the rules already require, but (as the Commercial Court Recommendations noted even at that august level) “in some cases either the parties or judges or both were not enforcing provisions in the CPR or the Guide with sufficient rigour”. That will change, and not only in the Commercial Court.
The day’s most compelling argument for considering electronic handling of electronic documents came not from any of my predictions, but from what I introduced expressly at the outset as a recurring message – ask the providers of software and services to quote and not only will you have the costs information needed to assess proportionality, but you might genuinely be surprised at the answer.
I asked Epiq to bring along DocuMatrix because it seemed to me that illustrating Mark Dingle’s talk on filtering technology was a great deal better than just describing it. I was also confident that Mike Brown would treat the occasion as an objective functional demo, not a sales pitch. In one sense, he overdid the caution here, so carefully did he avoid anything which smacked of an inducement to buy. One of my motives in asking him along – to show my point that some of these applications are near-magical in their power – was easily achieved by the demo. We nearly missed the other. With a couple of minutes to go, a delegate (the same one who had challenged me as to the Commercial Court at the outset) asked how all this power was relevant to medium-sized cases like his.
Mike briefly described the process – the data would be collected and uploaded onto Epiq’s servers, becoming immediately available for review from anywhere using the functions we had seen demonstrated. A small piece of software on the PCs was all that was needed at the user end. Users would be given such training as they needed and Epiq’s staff would be available to give further help if needed. For a small case, the start-up cost would be a few hundred pounds, with a monthly cost thereafter based on the volume stored.
We should, I decided, have started the day with this. “If I had known that we were only talking about a few hundred pounds…..” the questioner said, thus affirming my suggestion that practitioners should speak to a few suppliers before deciding that electronic disclosure was out of their reach.
It is not easy, this one. Make too much of the fact that there are companies offering cost-effective e-disclosure services, and the audience will assume that they are just listening to an extended advertisement. Underplay that, and they will spend the session assuming that the subject-matter is beyond their reach.
You do not know that without asking for some quotations. My reading list gives the names of a wide range of companies who sell services in this area. Some of these conferences are a good place to meet suppliers informally – in addition to those who were speaking last week, we had representatives from two collections companies, FoxData and CCL-Forensics in the audience. They are also a good place to meet other practitioners who have the same issues to face as you do.