I went down to Bristol last week with a group of electronic disclosure suppliers at the invitation of the Western Chancery & Commercial Bar Association. The aim, as in Birmingham last year, was not just to talk about electronic disclosure, but to illustrate it by showing and describing a range of applications and services
Bristol used to be Britain’s second city. In the 18th Century it grew prosperous on the triangular trade which took cloth and iron goods to Africa, slaves to America and tobacco, and sugar and rum back to Bristol. In 1841 the Great Western Railway connected it to London and, in an early example of joined-up commerce, you could travel on GWR trains and GWR ships from London to New York. Its relative prosperity declined as other places boomed and as different industries – ship-building, tobacco, cotton – had their heyday and fell away. There is more industry in the region than one sees from the M4 – I flew over the Severn Estuary on my way in from New York at dawn a couple of weeks ago and noted the miles of industrial zones from Avonmouth Docks down towards Bristol.
All that industry, together with property-related work from the West – Bristol is the first place of any size as you come up from Cornwall or out of Wales – has supported the growth of a strong legal and professional services business. Every other legal magazine in the late 1980s seemed to profile Bristol. Its population of around 400,000 makes it now Britain’s tenth city preceded by London, Birmingham, Leeds, Glasgow, Sheffield, Bradford, Liverpool, Edinburgh and Manchester. It can take as little as 90 minutes to get to London by train. There are some large barristers’ chambers in Bristol and one does not get the impression that work is in short supply. Bristol is one of ten cities in Britain with a Mercantile Court, that is, a court with a specialist commercial list and judge or judges ticketed to hear mercantile cases.
All very interesting you may say, but this site is meant to be an information resource on electronic disclosure, not a local history, travel guide or Chamber of Commerce directory. Indeed, but disclosure comes with litigation; litigation follows industry and business; and the ability to win commercial litigation work from any region depends on the quality of local law firms and chambers, and on their ability to stop the work from heading to London. It ought to be possible, in fact, for the combination of legal skills, good transport links and an efficient Mercantile Court not just to stem the flow to London but to reverse it. The sixty or so barristers and solicitors who turned out to listen to us presumably want to draw work into their region.
The audience included His Honour Judge Mark Havelock-Allan, a Designated Mercantile Judge at Bristol where a new Bristol Civil Justice Centre is under construction. There were other judges present whom I did not get the chance to meet. I met HHJ Havelock-Allan when he came to the first electronic disclosure session which I ran for judges, in Birmingham in 2007.
Organisation of the event was in the hands of Leslie Blohm QC of St John’s Chambers and Matthew Wales of Guildhall Chambers. The two hour seminar took place in the Watershed, a venue well-suited to this kind of thing (these things matter, let me tell you – the location, the acoustics, the tea and the amount of light which creeps round the blinds can make or break an event).
Where do you pitch such an event in terms of content? Relatively few lawyers outside London lay claim to involvement in document-heavy cases, nor do the judges see many cases with thousands, still less tens of thousands of documents. Yet if you run your eye down the cases in which some of the local barristers have been involved, there are some pretty big parties involved in what look like substantial pieces of litigation. I think that we ought to do two things – cover in sequence several of the stages in the EDRM diagram, and take a mix of applications and services ranging from the accessible to what one might call the aspirational. I also reckon to invite senior speakers from the various organisations – if 60 high-end lawyers and some judges are going to turn out then they deserve the best. This inevitably means speakers whose experience is at the larger end of the range, and if this means the occasional reference to multiple terabytes, international litigation and big teams, then that is a small price to pay for the authority which comes with the experience. It also means that I, in my role as producer of these events, can be relaxed about the performance – the speakers will turn up on time, stick to their subjects and their time slots, and appear cohesive even if they had not met before.
This group was a mixture of those who have done this before and new ones. It comprised, in addition to me, Deborah Coram from LDSI, Ian Manning from FoxData (the original sponsors of the Project), Glenn Perachio from Autonomy, Jacintha Hodgson from Hassnet and Robert Onslow from XBundle.
Leslie Blohm QC welcomed us and the audience. His opening included reference to Hedrich v Standard Bank London, which he identified rightly as a case which ought to strike fear into any practitioner who was not equipped at least to spot an e-disclosure trap looming. My own article, Is Hedrich more important than Digicel for e-Disclosure shows what I think of this case, in which a firm of solicitors narrowly avoided a wasted costs order based on their e-disclosure failures.
Chris Dale – Overview
I gave an overview. The e-Disclosure Information Project, I said, began in the Birmingham Mercantile Court where HHJ Simon Brown QC was keen to make his court an efficient place which people would choose to litigate in. The Project had acquired an international element in that developments in other jurisdictions paralleled ours and could not be ignored, but the Project’s roots lay in speaking to and writing for a London and regional UK audience. That audience comprised practitioners, judges, companies and suppliers, and the subject-matter included the rules (which were less known than they should be) and the problems and solutions which technology brought. I was, I said, utterly uninhibited about using suppliers and their products to spread information.
I gave a definition of e-discovery – “the disclosure by electronic means of documents which are originally electronic or can be made so e.g. by scanning“ – and stressed that actual disclosure was only a part of the overall process – documents must be identified, collected, processed, and reviewed before disclosure, and exchanged after it. The key rules, I said, lay in Part 31 CPR and its little-known Practice Direction, plus the management powers of the court and the overriding objective. I picked out the following:
Part 31 CPR and Practice Direction
- 31.6 standard disclosure only supporting or adverse documents
- 31.7 duty of search limited by proportionality
- 31.10 disclosure statement from authoritative person
- PD 2A.2 parties should discuss sources before the first CMC
- PD 2A.3 parties should co-operate as to the format for exchange
- PD 2A.5 searching electronic sources e.g. by keyword searches
- 1.4 Overriding objective factors include use of IT
- 3.1(1) power to make any order “for the purpose of managing the case and furthering the overriding objective”
2008 had seen a rash of cases where we had had almost none hitherto. These included:
Digicel (St Lucia) v Cable & Wireless
 EWHC 2522 (Ch),  All ER (D) 226 (Oct), Chancery Division, Morgan J., 23 October 2008
Abela v Hammond Suddards
Lawtel, 2 December 2008, Deputy Judge Paul Girolami QC
Hedrich v Standard Bank
 EWCA Civ 905 (30 July 2008)
Digicel was the best-known of these cases. It made no law, but by its recital of the Practice Direction obligations, and in particular the duty to discuss (and therefore co-operate with opponents), it had drawn attention to existing obligations which had so far been ignored. The downside for the Defendant was to be obliged to redo part of its disclosure and to engage in a co-operative exercise as to tapes which it had unilaterally decided were disproportionately expensive to disclose.
Abela brought the same issues closer to home in that the case (although not small) was of a kind more likely to match actual experiences. The judge had commented adversely on the evidence before him as to what was involved in the disclosure exercise.
Hedrich, already referred to, involved a High Street firm and was remarkable not so much for the value of the claim itself but for the costs clocked up all round in dealing with the botched disclosure.
There were other developments in the air. Master Whitaker’s drafting committee (of which I am a member) had produced a draft technology questionnaire aimed at flushing out what the electronic sources were, in terms both stronger and more detailed than Part 2A.2 of the Practice Direction to Part 31. Lord Justice Jackson’s litigation costs review was in hand. His team had had input from me and other litigation support people as well from Mercantile Judges including Bristol. One possible outcome of the review was a new emphasis on the Mercantile Courts.
The big issues coming up, I said, included litigation funding, access to justice, Woolf Ten Years On, Mediation, pre-trial stages (too many, too expensive?), and judicial education. The mediation versus litigation debate had just had a shot in the arm from Dame Hazel Genn QC’s attack of December. I have since written about this in Mediation is not about just settlement. It is just about settlement. These were all subjects which it was beyond the reach of any of us to resolve, though informed contribution to the debates was to be welcomed. The attention each us of gives to disclosure, however, is something within our individual powers and could begin tomorrow.
How much does one need to understand about all this? A little, but the aim is to know what is possible not how it works. Examples include the fact that e-mails can be sucked into a database to be reviewed without retyping and that there are different ways of collecting documents data, each appropriate to the circumstances. The main things to know were the contact details of people who were able to offer services and whom you could trust.
The over-riding point to be made was that none of us was saying that it is right and proportionate to use electronic means in every case. It is, however, incumbent on parties to know enough about the technology to decide what is right, to challenge other parties where appropriate, and to inform the judge.
Deborah Coram of LDSI
I was followed by Deborah Coram of LDSI. LDSI are a provider of a broad range of litigation services including electronic data processing, scanning and coding, consultancy over the full life of the case, hosted review or transfer of data to other systems. Deborah began by comparing “traditional” litigation support – the scanning and manual coding of largely paper collections – with the import of electronic documents as is common today. The scanned paper with its hand-coded fields and the electronic data which carried its own information can be added together to make a single database for refinement and review. The overall message was that costs had gone down with the reduction in manual coding, and Deborah produced comparative sets of figures showing a 50% reduction where the document population was wholly or largely electronic to begin with.
The cost of printing and photocopying multiple times was often overlooked when making comparative calculations. They ought to be included in any estimate of costs. If they are included then the marginal costs, if any, of handling documents electronically would look very different. There is obviously a little work involved in deciding what ought to be done and then contacting a couple of suppliers to ask what they would charge. The alternative, however, is turning up at a CMC without any idea what the costs would be. Since Digicel and Abela, it is likely that judges will want to know that thought has been given to this.
Ian Manning of FoxData
The starting-point for a data collection is identifying what your data universe comprises. This was the message from Ian Manning from FoxData. His expertise lay in identifying, collecting and, if necessary proving what he had done with, the data. Much of his work involved large cases, often abroad, but exactly the same principles applied to smaller and more local jobs.
It was easy to make assumptions as to the location of data which proved false on examination – those giving the instructions may not know this, and those responsible for the storage may not be aware that it matters. Every document created made at least four copies of itself and it was not necessary for the document to be saved for its traces to be left. The same applied to web pages. Ian explained that the mere act of turning on a laptop may destroy evidence e.g. by altering dates of last access.
Although Ian described (and illustrated) what the mechanics are of taking a disk image from a laptop, it was clear that part of his role included more basic detective work, derived from what he saw around him as much as from the technical side of his work. In cases where data was alleged to be missing, his evidence might relate to what the norms are as well as to what he saw or uncovered.
Glenn Perachio of Autonomy
Autonomy is a large company with involvement in a very wide range of data sources. Glenn Perachio emphasised both that Autonomy is a British company in origin and that its stock value is rising when few others are. Autonomy specialises in making connections out of unstructured data which comprises 80% of available information. The available sources may include more than just text – images, sound files and video were other common examples. He gave an everyday example: when you look at a story on the BBC News site you are given links to related pages. It is Autonomy which has made the selection based on what you are looking at already. The same principles can be applied to litigation documents. Autonomy has an application called Early Case Assessment, whose function can deduced from its name, and a review application called Introspect.
He showed us how a phrase can generate not only hits which include the words sought but also a list of words which – in a way similar to the BBC example – might be of interest to the searcher. The result may be shown in a list or as graphical “islands” whose proximity to each other shows degrees of closeness and on which are markers indicating volumes. This makes it easy to see what you have got – whole sections may be discarded (or at least put on one side) whilst others require a high priority.
Glenn gave examples of the value of hits found by conceptual relationship and how it is possible to broaden or narrow the search – or, indeed to follow a fresh line indicated by one of the related topics. He showed how you can apply the same approach to audio files, when the searcher is taken to the relevant section in a recording.
The later illustrates a wider point. I observed more than once during the evening that the costs of using applications like this had to be measured against the costs of the alternatives. It is an extremely time-consuming matter to listen to hours of recordings, more so even than reading paper documents. Like photocopying costs, the hours saved have to be part of the parallel calculations.
Jacintha Hodgson with CaseMap
Next was Jacintha Hodgson from Hassnet who specialises in LexisNexis CaseMap. CaseMap is a relatively low-cost database application whose strength lies in linking objects – dates, people, organisations, events, documents and, not least, issues. Jacintha showed how CaseMap automatically builds a unique Short Name for any object which then become the linking mechanism – if “Jacintha Hodgson” is always stored as “HodgsonJ” however it is displayed, then every other object with which her name is connected can cross-refer to her. This is of obvious value in criminal cases but its use in civil cases is often overlooked.
This allows you to follow down any set of connections relevant to your enquiry – start with a person, perhaps, and see all events in date order which relate to that person, or take a date and find out what was happening around it. Jacintha showed us an example involving links to bank accounts (another kind of object). She also showed how you can mark some text in a document (which may be an evidential source, some relevant law or a note about the case), and not only store the text in CaseMap but link automatically back to the source.
One of the main reasons for putting data into CaseMap is to be able to see the timelines drawn by its sister application, TimeMap. Jacintha showed us the result – a graphical display of the objects in date order, one of those things which makes you realise that the information has added up to more than the sum of its parts.
CaseMap is a versatile tool, and Jacintha’s time ran out before she could get on to all the reporting features. She did show us a Case Report – an extraction of the information about a case with which a solicitor could package information for a barrister or vice versa. It both looked smart and made a self-contained unit of information which was easy to distribute.
Robert Onslow with XBundle
The last show came from XBundle, demonstrated by barrister Robert Onslow and by Andrew Steven. Robert explained that its genesis lay in his long commute with several heavy bundles. He set out to develop an application which would replicate as closely as possible what he was used to doing with the hard copy bundles. XBundle therefore shows the documents in the bundle, page-numbered behind tabs. You can affix a sticky note, mark a passage with a highlighter pen, open several pages at once and keep an index of pages to refer to. Pages can be inserted with sub-lettering as you do when paper bundles are updated. A central shared copy will display only the markings, notes etc of the user who created them, so everyone in court can see the same page without each others’ input . And you can carry it all on the train. Bundles are made up by Trilantic on demand, with a fast turn-around time.
Questions and Conclusion
There were some questions at the end. What I say below expands on the off-the-cuff answers which I gave at the time.
HHJ Havelock-Allan observed that there was clearly a minimum number of documents below which it was not worth handling them electronically. This is clearly right, and that level is higher if the documents exist only as paper, because electronic documents can be acquired into a system more easily and without much, if any, manual coding. What is that level? Five ring binders? Twelve of them? I don’t think it is as easy as mere numbers. How many sets of photocopies will you be making for distribution? Is there a value in searching the OCR text (only available, obviously, if the documents are scanned). Tools like Equivio can compare OCR and show you the differences between versions – how much time will you spend reading them closely to spot the differences by eye? And what will that cost?
Nor is that the end of the variables. How skilled will you prove to be with this technology? Your first time, as in other things, is not an indicator as to what you can do with a bit of practice. You need to give it a go.
Another judge asked what was the proper approach when parties came before him in what might be an appropriate case for electronic disclosure. He was entitled, I said, to be told what the costs were estimated to be of different approaches. If the parties had not applied their minds to this and could not adequately answer questions as to costs then they should be sent away to get them – suppliers would be pleased (and prompt) to give estimates, and although there would be a few wasted CMCs, parties would soon get the idea that the judge, in this court at least, expected to be given the wherewithal to make proportionate decisions.
This was also the proper answer to another question – how does one begin to assess one product against another? Ring up a few suppliers and hear what they have to say and press them as to the costs for scenarios relevant to your practice. You don’t need to have a case looming and it is in some ways better to do it in the abstract. You are not just looking at technology and costs. Do you like these people? Would you entrust your clients’ work to them? What are their terms and conditions of trade? Will they still be in business in six months time?
Afterwards, we were kindly taken out to dinner by Leslie Blohm and Matthew Wales. It is in that sort of context that the ideas start flying as to how scanned or electronic documents can be used to save money, speed up cases or to equip a barrister or solicitor for different kinds of work or ways of working. One needs the seminars and the demonstrations for the overview but then it come down to what sort of work you do or want to do so that the answers are fine-tuned to the problem. You don’t get that at a bare demo.
That is the point of these wide-ranging talks I am starting to do. From the lawyer’s point of view, they are a kind of taster menu, giving some idea of the possibilities. From the supplier side, finding out what people actually do now, what questions arise, and what the doubts are helps them to refine what they offer as well as how they describe it.
My thanks to Leslie Blohm QC, Matthew Wales and the Western Chancery and Commercial Bar Association. Thanks also to those who came down with me, for their extremely helpful talks, and for running to time.
020 3119 3200 / Deborah Coram / firstname.lastname@example.org
01892 752896 / Ian Manning / email@example.com
Autonomy Zantaz www.zantaz.com
01223 448000 / Glenn Perachio / firstname.lastname@example.org
Hassnet Ltd www.hassnet.co.uk
01527 857555 / Jacintha Hodgson / email@example.com
020 7042 1000 / / Robert Onslow / firstname.lastname@example.org
e-Disclosure Information Project www.chrisdalelawyersupport.co.uk
01865 463033 / Chris Dale / email@example.com