Those who expect a daily addition to this collection of notes and essays (and I know there are a few such) may have wondered if I have run out of things to say from the paucity of posts recently.
Far from it, but I have been preparing for or attending three conferences this week, each of which has generated more than enough potential copy without leaving time to write it. What follows is a taster which I will follow over the next few days with more detailed reports.
At the Lawyer conference E-Disclosure – Beyond the Rules, I spoke with HHJ Simon Brown QC on the Commercial Court Recommendations and what the courts expect from you. We picked out the parts and the principles which apply to disclosure, and emphasised that everything we talked about applied as much in other courts as in the Commercial Court in cases where the volumes of documents made it proportionate.
That done, I decamped to UCL a couple of streets away to present a paper for LexisNexis at the DESI II Workshop on Supporting Sense and Sensemaking for ESI in Discovery Proceedings. My subject was Casemap Issue Linking in UK Civil Proceedings, showing how the Commercial Court’s emphasis on issues as the regulator for discovery and everything else could be captured in CaseMap, for me the epitome of a sensemaking application. Judge Brown came with me, as did Edward Pepperall of St Philip’s Chambers in Birmingham.
It is invidious to pick out the other speakers at the Lawyer conference over the two days, especially as I missed quite a lot of it. Sanjay Bhandari of Ernst & Young was chairman for the first day and Andrew Haslam for the second, both skilled at following up speaker sessions with well-judged questions which encourage others to join in – it can be very difficult to get user interaction at these events. Sanjay reminded us, somewhat superfluously, that his extra-curricular activities have included being a stand-up comedian.
It was good to see Nick Burkill of Dorsey & Whitney, a long-standing member of the Rule Committee and one of my former partners when I was a litigation solicitor. Nick was the first user of the document listing application I wrote 20-odd years ago. He was on the opening panel and told us something of the genesis of the Practice Direction to Part 31, that vital component of the CPR which, if the courts cared to use it, provides a full code for the handling of electronic documents.
Vince Neicho of Allen & Overy spoke about collaboration amongst law firms mainly in respect of exchange mechanisms, and Matt Grant of LexisNexis followed that up with an outline of a practical example of multi-party collaboration. Vince’s constant theme here is that this is an area in which co-operation should be compulsory, with no space for tactical play – there is room for more than one view on this, as we heard later, but Matt’s case study was certainly an example where the imbalance between parties required a high degree of co-operation, willing or not.
I missed the afternoon sessions thanks to the rival gig down the road, but returned for FTI’s drinks in the evening. This is where the serious work gets done, the conversations which distil an intensive day’s input.
Thanks to a technical difficulty with the trains (namely my reluctance to be on the 06:30 again), I missed most of the opening session on Day 2, in which Janet Lambert of Barlow Lyde & Gilbert and Nigel Murray of Trilantic talked about e-mail threads and duplication. The subject which raised the most interest was the difficulty of finding near-duplicates – a good means of culling if you get it right, an equally good way of omitting key documents if you do not.
The dry-looking title of the talk by Alex Dunstan-Lee of KPMG – Reducing risk and controlling costs through in-house disclosure – concealed an interesting review of the options facing an organisation seeking to set up its own facility for handling electronic disclosure. He began with a report of an informal survey as to what keeps corporate decision-makers awake at night, and showed us how the reactive stages after an incident (such as a claim or regulatory investigation) should inform the proactive steps needed to be ready for the next one.
Michael Colao of Dresdner Kleinwort Wasserstein and Sanjay Bhandari talked under the heading Managing costs – the new relationship with outside counsel. My report on that will – or should – make uncomfortable reading for those who misjudge their own clients’ level of understanding when documents must be produced. If many difficulties arise from over-estimating that, then just as many may ensue from attributing ignorance to a client who knows his systems rather better than you do.
After that, I moved on to my third conference of the week, the International Conference on Digital Evidence run by MIS at Vintners’ Hall and organised by Stephen Mason, barrister and editor of Digital Evidence. The main attraction for me was Master Whitaker, Senior Master of the Queen’s Bench Division, who spoke about the changes in the UK rules and practice – both those which appear in the CPR and the 2005 Practice Direction to Part 31 CPR and those which we can expect during this year as judges and practitioners are helped with the application of the rules to the problems raised by electronic disclosure. If, as he was kind enough to say, the work which I and HHJ Simon Brown QC are doing to raise awareness is having a discernible effect, we are fanning a flame which Master Whitaker has kept alive on his own for many years.
Master Whitaker was followed by the Honourable Judge Francis Allegra of the US Court of Federal Claims, who outlined some of the issues and solutions which he comes across – with more in common with our practices than one might expect.
All of these topics deserve a closer look, as well as others which came up over the two days – the adequacy or otherwise of keyword searches, the importance of the disclosure statement, the rise of voice recordings, the danger of slipping towards arguments over competing search algorithms, and so on.
Beyond the conferences, the recent developments in the US arising from the O’Keefe and Victor Stanley Opinions deserve attention. The new Australian Practice Note comes into force in a few days. The British Government is slated for woeful data security defects which derive from process failure, inadequate training and human error rather than technology (although no-one, it seems, is actually to blame). Legal Inc gave a great party and made some announcements. More than enough for a solid week’s worth of writing tips by in a flash.
If it all seems remote from the experience of the mid-sized firm with the medium-weight case, then that state of affairs will not last for long. Every one of the points referred to above has application to such cases. That will be gist of my further reports.