A collections expert, a data archive specialist, a commercial barrister and a judge took a Birmingham audience – the second audience there in three weeks – through the stages of data handling, from organising it on the clients’ server, through its collection, and on to its use in court. I was the warm-up act
Freshly returned (well, reasonably fresh, anyway) from electronic discovery conferences in Australia and the US, I was back in Birmingham on 23 October for an e-disclosure seminar organised by Birmingham Law Society. One of the speakers in Sydney, Geoffrey Lambert of KordaMentha, had referred in his session to the “Birmingham initiative” which suggests that we are making some impression. This was the second well-attended seminar in the city in three weeks, following the one at St Philips Chambers at the beginning of October.
This one was sponsored by two suppliers, CCL-Forensics and CommVault. CCL-Forensics specialise in the collection and analysis of digital evidence. CommVault’s business includes enterprise-wide storage management and e-discovery with solutions for email archive, collaboration, file systems and Network Attached Storage. I was approached some time ago by the Birmingham Law Society to act as compère. Being then unfamiliar with the multiple hierarchies within the Law Society, I had assumed that the invitation was in some way connected with the 10 city tour which I am doing (and am about to resume) for the Law Society. It transpires that Birmingham Law Society is not much to do, in organisational terms, with the excellent Clive Black, the Law Society’s Regional Manager West Midlands (who organised our first events in Birmingham last year), and still less to do with Chancery Lane, who run my regional tour – which is itself due to reach Birmingham in January.
If you ever want something organised for you – a war, say, or a mass migration – can I commend Glenda Rogers at the Birmingham Law Society? I have been involved in many conferences this year, but this one was run with what we used to call “military precision” – post-Iraq, I guess we will have to find some other term for it. This one ran on rails from my perspective as a mere guest speaker (I use the expression in its figurative sense of course – anything which actually runs on rails in Britain now is ipso facto a shambles, which is not what I mean at all).
The event was introduced by Paul Farrow, the Chief Executive of the Birmingham Law Society, who put our subject into a business context. I went next, straying from my agreed agenda of court rules and technology to pass on some of the principles of leadership and responsibility which had been discussed in Washington the previous week (see Leadership in Litigation). Clients have a responsibility co-equally with their lawyers and the courts, I said, to be ready for litigation and to manage the costs of it. Before documents and data are delivered to the lawyers for disclosure, they had to be collected. Before that, they sat on a wide variety of systems and devices in largely unstructured form. If you deliver a dog’s breakfast to your lawyers, they will make a meal of sorting it out to make it fit for disclosure, and charge accordingly.
This is not to under-estimate the costs and other implications of having a document retention policy and a litigation readiness policy. It is a matter of managing risk – if you anticipate that you may have to produce your documents to a court or regulator, it makes sense to weigh the costs of being prepared against the possibility (or probability, depending on your risk profile) that a lawyer may have to remedy your document management defects before litigation can commence. It did not diminish the responsibility of the clients, I said, to suggest that lawyers might equip themselves better to be able to offer pro-active advice on this subject, and not merely wait to field the problem when it arrives as a case.
That served as an introduction to the other speakers, whose businesses are the different aspects of being ready for litigation. Mark Larson of CCL-Forensics described in non-technical terms what is involved in collecting data. His starting point was one I use often – it is late on a Friday and a call comes in from a client who urgently needs to preserve and capture information needed to bring or defend a claim, to satisfy a regulator or to support an internal investigation. Where do you begin? Mark’s preliminary suggestion – don’t panic – is comforting only if you have some idea what to do instead. His talk was aimed at giving the audience sufficient idea of what is involved to enable them to make informed decisions quickly at what is sometimes an irreversible stage in the proceedings.
Simon Taylor of CommVault took us one stage back from this. What can companies do to reduce the cost and the risk of finding the required data by preparation – both in terms of systems and of processes? His talk was heavily illustrated, which made a complex subject palatable and comprehensible. As with so many aspects of this, the lawyers do not need to understand the deep complexities, but they do need to have a handle on what the scale of the potential problems are when they get involved in case preparation. The same applies to judges, who cannot make disclosure orders proportionate to the problem if they do not understand what the problems are.
The next speaker was Edward Pepperall, a commercial barrister at St Philip’s Chambers in Birmingham and the organiser of the event at St Philips earlier in the month. Ed moved us on from the problems of mass e-mails and GigaBytes of data and down to the minutiae of using key electronic documents in court and in the preparation for court. He gave us an example of some competing ex-employees whose engineering diagrams looked pretty well identical to those of the former employer. Looking “pretty well identical” is not itself proof of copying – the designs may have been re-engineered. No amount of by-eye comparison between the documents would yield evidence one way or the other – until the drawings were examined in their electronic form. Minute comparison showed that one of the defendants’ diagrams included an angle with a tiny discrepancy from its label, and that one side of the drawn shape was a fraction short of the length it was said to be. The deviations were trivial – and were identical to defects in the employer’s originals. The odds of arriving at the two discrepancies by chance were miniscule – case proved.
Ed Pepperall illustrated also the value of thinking more widely around the available electronic sources, which are not limited to those disclosed by either party. He gave as an example a FaceBook entry which contradicted the evidence of the defendant.
The second part of Ed’s talk was about the use of an electronic tool to analyse and review data – not just documents but facts, people, dates and, not least, issues. He is a recent convert to LexisNexis CaseMap, in part as a result of a talk he heard me give about CaseMap earlier this year. I was eloquent about its capacity to help you make sense of the multiple components which make up a case by allowing you to view them from different perspectives – chronologically, by witness, by issue, and so on. It has not taken him long to get to grips with CaseMap (you do not need to be a technical wizard, nor to have deep pockets, to master the elements of it) and he showed us how he had used it.
The last speaker was His Honour Judge Simon Brown QC, a Designated Mercantile Judge at Birmingham Civil Justice Centre and a strong advocate of close and informed case management. He was pleased that, within a year of our first attack on the subject, Birmingham was on the map for efficient case management, particularly in respect of electronic documents. As a commuter he could see people sending and receiving documents on the train. The contracts coming to his court were often made by e-mail. We – lawyers and judges alike – needed to know how email works, he said. We needed better communication with IT professionals and better communication between parties. Firms should document their experiences and develop firm-wide disclosure strategies.
Documents remained the primary and most reliable means of assessing what the facts were. Witnesses are unreliable and recall what best suits them. The template directions order in use in the Mercantile Courts required parties to discuss their sources (as the Practice Direction to Part 31 CPR requires anyway) and he expected parties to be able to point him towards what he needed in order to find the facts to support or oppose the pleaded issues.
He needed to be in a position to see the scope of the document sources – the custodians, the BlackBerrys and the laptops as well as the servers – and to know how the parties intended to search for the documents which mattered. He also wanted to know how the lawyers proposed to handle the documents and how they were to be provided to the other side – this was all part of case management, specifically required to meet the overriding objective. The use of technology was also an express obligation where that was appropriate, and he needed to be told enough to make decisions about that.
Judge Brown said that he often dealt with summary assessments of costs and so got to see what hours were incurred and what sums were charged for document-handling. He had seen one recently where 168 hours had been claimed at a total cost of £33,000. Nothing about the case warranted this level of expenditure, and the costs were not recovered from the other side.
It remained the case, he said, that the biggest fee-earner was often Mr Photocopier. He had recently seen 10 lever arch files of invoices which had been copied and the bill sent to the client. They could have been scanned at a far lower cost if, indeed, it was proportionate to disclose and exchange them at all. In another case, each side had run up £100,000 over a claim of £300,000. Parties could not afford to litigate at this level of cost, much of which was incurred unnecessarily.
Judge Brown concluded by saying that case management was for his benefit as much as anybody else’s. His job was to find facts from contemporaneous sources. A blizzard of information made this harder. Birmingham was showing the way to litigation in which costs were controlled, whilst yet remaining profitable.
Many of the audience stayed afterwards for drinks and conversation – I always rather regret it when an audience puts on its collective coat and disappears as soon as the last words fall away. A supply of good food and drink does, of course, help in this.
My thanks to Paul Farrow, Glenda Rogers and Birmingham Law Society for the organisation, to CCL-Forensics and CommVault for funding the room and the refreshments, and to all the speakers.
Mark Larson firstname.lastname@example.org
Simon Taylor email@example.com
Matthew Grant firstname.lastname@example.org
Birmingham Law Society
Glenda Rogers email@example.com
e-Disclosure Information Project
Chris Dale firstname.lastname@example.org