It is not often that I devote a whole article merely to the opening remarks of the chairman of a conference, but then it not often that one has a former Lord Chancellor in the chair. Lord Falconer’s speech at the Legal Week Litigation Forum which covered the economic drivers to litigation warranted the space I gave to it. This page covers the session in which I played a part.
I was a panellist in a session called Streamlined litigation: assuring efficiency through applied technology, along with Robert Brown, senior director of First Advantage Litigation Consulting Services and Rachel Coldbreath of Cleary Gottleib Steen & Hamilton LLP. That we never got as far as my prepared notes is by no means a complaint. Quite apart from the fact that I can use them somewhere else, the one hour allotted to us raced by in an unusual amount of audience inter-action. This was explained partly by the fact that this was a litigation audience rather than one narrowly limited to electronic disclosure, and partly by the layout of the room – members of a group facing each other round a square of tables are somehow more inclined to speak out than one in rows of chairs.
Rachel Coldbreath is in charge of discovery for the UK and Europe at Cleary Gottleib. As one might expect from its US parentage, the European offices are geared up to handle much of the process itself, with the luxury of having an in-house system, LexisNexis Concordance. The combination of a US approach, a steady flow of document-heavy work (not all litigation) and the availability of expert human and technical resources engenders an approach which was outside the experience of many of those present – cases with a high proportion of non-English documents for example – but which painted a picture of how it could and should be for many of them.
Rachel having set an aspirational tone, I took us into more everyday waters, the cases with a few thousand documents rather than millions. The US example has, if nothing else, forced the development of high-quality software tools. Designed to flush out every last relevant document for fear of sanctions, they adapt very well to the more selective aims of UK e-disclosure – the “surgical” analysis which the Commercial Court Recommendations urge on judges and practitioners.
We were challenged as to our obvious willingness to discard masses of material without reading it. The reality is that you cannot read it all, and must rely on the proper use of very good technology (“proper” and “very good” being the operative terms here) to show you (and your opponents and, if necessary, the judge) what you might properly discard. I quoted from Hands v Morrison Construction: reducing the amount of documents sought from two needles to one needle makes it no easier to find in the haystack. We must focus first on reducing the haystack.
I asked if anyone had ever found the “smoking gun” so beloved of software vendors in their advertising, and was rather surprised by the number who said that they had. The expression, properly used, means more than just the document which makes or breaks the case – we have all had those; it has the additional connotation that chance or skill uncovered it unexpectedly. If smoking guns turn up all over the place, then all the more reason why lawyers should be calling on the help of software designed to flush them out, and to strip away the unwanted debris which conceals them.
The group included Graham Huntley from Lovells, a past President of the London Solicitors Association and a member of the Working Party which produced the Commercial Court Long Trials Recommendations. As one might expect, he was eloquent on the subject of close court management of disclosure, quoting the passage (which I produce often) which emphasises that parties should not get too stuck into disclosure before the first Case Management Conference “which decides the scope of disclosure”. That implies a number of things, including the obligation on the parties to know enough about their document sources by the CMC to be able to explain their likely importance and the costs of extracting them – these two elements are the factors which together dictate proportionality.
That gave me the hook on which to hang a quick summary of what we hoped for from the proposed new Technology Questionnaire, which will force parties to undertake and share at least the survey of their sources. The obligation to have the discussion exists already, in Paragraph 2A.2 of the Practice Direction to Part 31 CPR. The requirement to exchange a Technology Questionnaire will give this some teeth, and give the judges more reason to use them.
This reference to using judicial teeth set me toying with the idea of some imagery involving dentures unused in a glass of water by the bed. Too much scope for misunderstanding there, I decided – someone might think I was talking about the judges’ own teeth. What we are talking about, of course, is sharpening the procedural teeth, the better to perform the surgical dissection of the document sources at an early stage in the proceedings which the Commercial Court Recommendations require.
The Recommendations were the subject of the next session, which warrants its own report.