Nearly a year after FoxData agreed to be the first sponsor of the e-Disclosure Information Project, I have at last been to see the company’s premises and met Ian Manning properly
The order in which logos appear beside these pages reflects the sequence in which companies agreed to sponsor the e-Disclosure Information Project. For those new to this site, the Project’s purpose is to increase awareness about electronic disclosure by bringing together all those with an interest in what is often the biggest single expense in civil litigation. Of all the players – courts, practitioners, corporate clients and suppliers – the group which is most remote from the practicalities is the one which has to make the decisions about case management, the judges.
This is by no means a criticism. This is a world in which the problem – the expense of handling ever-increasing volumes of electronic documents – and the technical solutions to deal with that problem, advance at a rate which is very hard to keep up with. Judges may know the rules and powers which exist to manage cases, but it is very hard to map them to the technical problems and solutions.
It was to bridge that gap that the e-Disclosure Information Project was set up with the enthusiastic support and involvement of HHJ Simon Brown QC of Birmingham Civil Justice Centre. Judge Brown invited me last year to develop and deliver an information session for judges. That grew steadily in scope and attracted wide interest, not least because its launch coincided with a report by KPMG highlighting the absence of any training for judges on electronic disclosure.
As a business proposition, this had an audience but no client. I met Ian Manning of FoxData at a conference in London in September 2007. FoxData’s business is the collection of electronic data from PCs, servers, laptops, telephones – any device which may hold information which may be needed for a fraud or forensic investigation, to meet a regulatory requirement, or for litigation.
What was interesting for me in that conversation was his focus on speed and cost, on being alert for what you are not being told or shown, and on the balance between the value of the data recovered and the cost of handling it which comes under the heading “proportionality”. The other thing which struck me was the fact that the skills used for big international collections, perhaps with a fraud element, scaled down well to more local and not necessarily forensic collections.
That matched well with my message to judges about early identification of the sources which are not just disclosable (31.6 CPR) but worth searching for (31.7 CPR and 2A.4 and 2A.5 of the Practice Direction to Part 31 CPR) and the obligation on solicitors to discuss electronic sources of data before the first CMC (Para 2A.2, PD to Part 31 CPR). I explained what I was trying to achieve, and Ian agreed to sponsor the work on talking to judges. Without that help, there would have been no Project.
Since then, the Project has grown quickly, won support from the sponsors shown here, and backing from senior judiciary. That has enabled me to spend my time writing about, speaking on and generally promoting interest in and use of electronic disclosure. Although I have spoken often to Ian Manning in the meantime, I have never actually met him again, mainly because he is always working on projects around the world. He has now, however, taken on Emma Christie from Shell to run the business side and co-ordinate the technical resources, together with more support on the technical side. I went down yesterday to Tunbridge Wells to find out more about the business.
Those who may need to have data collected ought really to go and visit the premises of those who do the work. The theory – the search, co-operative discussion and proportionality requirements of the CPR in my main context – is much illuminated by physical sight of what is actually involved. FoxData has a secure server room with biometric entry controls, a fire safe and an impressive array of the equipment needed to extract data from the boxes of hard drives and other electronic sources. I would like to organise a bus tour of judges, who would gain a closer understanding of what is involved in arriving at a proportionate decision if they could see what is involved. In collections, as in the other areas of litigation document management, one sees simultaneously that the tasks are non-trivial and that there are experts on hand to handle them.
The documents exist, and in quantity, and must be dealt with. Those of us who promote awareness of the implications are not inventing problems to solve but pointing up what resources exist to tackle them as the rules require. The collection of the data is the one area which, when an urgent case comes in, you have no time to plan for. It pays to identify in advance someone to help you.
I will write more about what FoxData actually does in due course. Meanwhile, I am glad at last to catch up with Ian Manning whom I left, characteristically, organising flights to the next day’s job.