The US courts are laying increasing stress on the technology and the methodology used to find documents relevant to a case. Even US lawyers are pulling the blanket over their heads at the implications of this, and UK lawyers will do the same if we just leave them to read the US judgments. We have a very different set of aims over here, but the technology and the principles developing to meet the FRCP challenge are exactly what we need, just turned to different purposes. The key term is “transparency”.
I have shied away from writing about the judgments of US courts which are the all-consuming subject of the year in American litigation circles. US v O’Keefe, Equity Analytics v Lundin and Victor Stanley v Creative Pipe all deal with the importance of accurate and reliable searches – embracing both the technology and the skill with which it is used – and between them, in their slightly different ways, appear to raise the level of equipment, qualification and skill needed to engage in the business of giving discovery / disclosure of documents. Serious stuff, in a country where so much of the focus appears, to UK eyes at least, to be on the technology and the methodology at the expense of the search for justice – with the emphasis on the word “expense”.
This sort of thing is exactly what frightens UK lawyers and judges away from the whole subject. The problem does not, of course, go away because we ignore it. The “problem”, in this context, is the brute fact that corporate clients have ever-growing populations of documents, that most of them are electronic, and that our disclosure rules require us to produce them or, rather, to produce some of them – those which are disclosable, not privileged, and not disproportionate in number and content to the case as a whole. If the problem has not gone away, the clients have, and the failure to address the problem of e-disclosure is the main reason why expense has left litigation as a luxury for the very rich.
To learn that US courts appear to be raising the bar as to the quality of searches and that even US lawyers are fearful of the result offers no great incentive for UK lawyers. I propose to spare you (to say nothing of me) a deep analysis of the US judgments and try instead to point up two things – the relevant differences between the US context and ours and why we stand to benefit from the fall-out from these judgments.
Those who want a survey of the cases and their likely effects in the US might like to read Craig Ball’s article Keyword Searches: A Grim Prognosis on the Law.Com Legal Technology Web site. The article’s title tells you all you need to know about the author’s conclusions. There is value also in an article Lessons from Creative Pipe by Joshua Horn and Beth L Domenick published on the same site.
If you want these cases reduced to the shortest possible conclusion, it is really no more than this: if you are going to give discovery, do it properly. A slightly expanded version might be that “The Court requires legal practitioners to be appraised of the basic capabilities of modern technology in so far as it relates to [discovery] or, where they are not so appraised, to ensure they have access to advisers who have the necessary skills and experience.” – which happens to be part of the express wording from the new Australian Practice Note on the subject, and no more, really, than a statement of the obvious. The English law of professional negligence requires no less. If you don’t know what you are doing, hire someone who does. If there is a difficult point of law to be argued, you engage a barrister to help with the law and the advocacy. It is routine to hire an expert for specialist evidential knowledge on a subject which is beyond your own area of expertise. If there are a lot of electronic documents, you must recruit the help of someone who knows how to handle them. You do not just ignore them any more than you ignore the points of law.
One of my constant themes is that there is a mature market of professional suppliers of software and services who do know what they are doing. Unsurprisingly, they have risen to the challenge of Creative Pipe et al by focusing both their technology and their marketing on search. I saw many of them at ILTA in Dallas a couple of weeks ago. Again, I can spare myself several hundred words by referring you to yet another article on the Law.Com site. Its title is ILTA E-Discovery: The Elephant in the Room by Sean Doherty, and is something of a misnomer: the elephant in the room generally means the obtrusive thing which no-one mentions – and everyone was talking about search at ILTA.
The article refers to several suppliers and their products as key proponents of advanced search technology. Some are not (yet) to be found in the UK, but there are some familiar names referred to in the article.
Epiq Systems’ DocuMatrix is one – Epiq’s concept search technology (provided by Autonomy) gave me, when I first saw it, a clear picture, not as to the workings of the technology itself, but as to how to explain it to those who mistrust the idea of delegation to computers – and, indeed, those who simply want to get their minds round the power which these applications bring to sifting gold out of the dross.
Discovery Mining is another provider with a UK presence mentioned in the article as aiming to get customers up and reviewing data within 60 minutes of its Web-based training, with features which mark related e-mail threads and documents to accelerate review, Google-like searches with embedded analytics, and clustering concepts together.
The lead part of the article is about Clearwell’s Transparent Search, a new feature in Clearwell’s product which is expressly aimed at the heightened interest in search and, in particular, at being able to show (a court, an opponent and, indeed oneself) what the scope and effect was of any search which was conducted.
I have not seen the product (I am due to meet Clearwell next week) and it is not anyway part of my role to attempt any assessment of Clearwell’s technology or interface versus those of Autonomy, DocuMatrix, CaseLogistix, Discovery Mining or any of the other providers in this market – they are all near-miraculous in their power and in their ability to do quickly and cost-effectively what a roomful of lawyers cannot hope to do as fast or as cheaply.
My focus here is on the word which Clearwell has chosen for its new functionality – transparent. UK disclosure has a requirement which is, in a sense, directly opposite to that which the US cases are emphasising. There, the lawyers must show that they have captured everything likely to be relevant. Here, quite apart from the fact that mere relevance is far too wide a term to describe what we need to capture (see Relevant is irrelevant to UK disclosure and the definition of a disclosable document in Part 31.6 CPR), the aim of UK disclosure is to narrow the scope of disclosure as early as possible.
That involves some difficult decisions as English lawyers, brought up not only in pre-CPR days but with an ingrained professional duty to disclose everything which might arguably be disclosed, try to steer between the Scylla of over-disclosure and the Charybdis of omission. The CPR, and specifically the provisions of Part 31.7 CPR and Paragraph 2A.4 of the Practice Direction to Part 31 provide statutory permission to leave on one side sources whose value is unlikely to warrant the expense of recovery. This gives scope to omit difficult sources (not to ignore them – the arguments for leaving them out must be set out in the Disclosure Statement). The wide discretion given to judges allows them to weigh the value against the cost to arrive at a proportionate conclusion.
This approach is a complete mystery to many US lawyers, used to being able to turn to some case law to prove or disprove almost anything. It is hard enough for them to grapple with the idea that it is for the giver to decide what is disclosable in the first instance, let alone that the boundaries are set so loosely, and that judicial discretion is fettered only by the hazy notion of proportionality.
The elasticity which that gives is extremely valuable – like a tap which an informed judge can use to turn the costs of disclosure on or off. The key word is, of course, “informed”. Judges are not just referees here between two views as to what should be disclosed. They are entitled – indeed, are required – to impose their own view if they consider that a party is about to over- or under-disclose (note that “about to”, incidentally – it is too late if they come to the problem only after disclosure has been given). That in turn means that a party who is unsure of the propriety of omitting sources can – should – invite the judge to say what he wants. It is, after all, the judge or one of his colleagues who will have to sit for days wrestling with stacks of waste paper if too much is put into the ring.
That brings us back to transparency. If a party is to omit material which might possibly be disclosable, and especially if he needs to persuade or encourage a judge to take part in the decision, then he must show his workings. What search questions were asked, what results were obtained, what variants were tried, or were considered and not attempted?
The court is not the least interested in the underlying mechanics (see Do you need to know how the technology works?). The fact that an application is adequate for the testing-ground of FRCP is likely to be a good enough reference. What matters is what the methodology was, what human processes were replicated by the application of those processes and of the technology to the problem, and what conclusions might reasonably be drawn from them?
I am going to take another short-cut here and refer you to a series of posts tagged “Transparent Search” on Clearwell’s e-discovery 2.0 blog. Forget as you read them that the context is compliance with the increasingly onerous requirements of FRCP, and forget also that Clearwell would presumably rather you bought their product rather than anyone else’s. It is good objective stuff, and pretty well everything said in their blog posts applies equally to the very different UK requirements and to any good search technology. The tools which have been created to cope with the aftermath of Creative Pipe serve very well to comply with the requirements of the CPR.
Try this: pick any two of the supplier links above and ask for a demonstration. Say that you do not give a monkey’s (for now) about their market capitalisation, their investment in R&D, the number of major US firms who use them, their workflow and the rest. These things are important but they can wait. What you want to see is a simple example (stress the word “simple”) of their technology cutting through the bulk to a narrow selection to include or exclude. Don’t worry your learned head about HOW this was done, just look at the results and ask yourself how many lawyers over how many hours would it have taken to arrive at a selection with which you felt as comfortable. You will not know if it is any more accurate than the lawyers will have made, but proportionate disclosure does not generally require more than that you are satisfied that you have made a reasonable search and that you can show this. This is transparency.
Yes, I know there is much research on the relative efficacy of different search techniques, and there are, of course, cases where every last document must be found. Most everyday UK litigation is not like that. Most everyday litigation is not happening at all, because of the costs of disclosure. The tools developed for the bludgeon of US discovery can work very well for the scalpel of UK disclosure.