If I were to define a perfect working day it would go something like this: wake up in a comfortable hotel and take a five minute stroll to Piccadilly; sit on a platform with the two leading US and the two leading UK e-discovery judges and discuss developments in the two jurisdictions; go and see Lord Justice Jackson to discuss the e-disclosure parts of his report; take part in the premiere of your first play, a courtroom drama in which the judges are played by judges and the advocates by people whose life has been spent at the bar; then dine at Rules before going home with the sense, which others seem to share, that the disclosure world has moved on a bit that day.
It sounds all right as a way of passing the time, does it not? So that is what I did on Thursday, on Day 2 of IQPC’s Information Retention and E-Discovery Management Conference. I am but the Boswell to the distinguished set of Dr Johnsons who took part in all this and my main contribution was made months ago. I am on the Advisory Board for the conference, and Sarah Haynes of IQPC rang me up and asked which US judge should be asked to take part in the judicial panel which Guidance Software were intending to run. “Ask Grimm or Facciola” I said, much as one might say “Get Kidman or Jolie” for a film, or “Ask Rooney or Ferdinand” round to play football. Sarah rang back a few days later and said “They are coming – what would you like them to do?”
For those who do not know, Chief US Magistrate Judge Paul W Grimm of the District of Maryland and US Magistrate Judge John M Facciola of the District of Columbia are the two best-known and forward-thinking US judges responsible for handling discovery disputes. Their Opinions on the subject break new ground with a frequency which terrifies those who do not know what they doing but which is cheered by anyone concerned to bring proportionality and cost-control to litigation. In the UK, Senior Master Whitaker has been banging the same drum since his appointment in 2002, and was joined a couple of years ago by HHJ Simon Brown QC, Designated Mercantile Judge at Birmingham Civil Justice Centre. My e-mail to Sarah said “The line-up of Grimm, Facciola, Whitaker and Brown would be a dream team”.
It is worth a brief deviation to explain why I wanted this particular line-up. One of the issues we have to square up to is that English lawyers think that electronic documents are an American concept which has no place in our courts – just look what an expensive mess it all is, they say, as if it were the documents themselves or something about Americans which are to blame. One of my ambitions is to get across the message that the documents exist and must be managed, not ignored, and that the US experience, good and bad, must be noticed. A second ambition goes the other way – to persuade American judges and lawyers that we have some useful rules of our own, well designed to cope, if only anyone would use them. The messages of competence, co-operation and costs control which Judge Grimm and Judge Facciola give are the same as we hear from Judge Brown and Master Whitaker. (There is a deeper level again, about justice and access to justice, but we can come back to that another day).
Patrick Burke of Guidance Software was the Moderator of our panel. We had reckoned in advance that the five of us needed little planned structure for the short time available and that we would have only two set topics. One was Digicel v Cable & Wireless and one was costs control. I long ago learned that if you try and note up a panel discussion in which you are a participant, you are one subject behind when you get thrown a question, so the points which I captured are few (if anyone cares to send me a proper note of what was said I would be grateful). The ones which stuck with me included these:
- The main significance of Digicel was not that it made any new law, but that it set out clearly what was already in the much-ignored Practice Direction to Part 31 CPR as to the duty to discuss and co-operate, and showed the heavy downside risk of not doing so.
- This, the first important disclosure case involving the 2005 Practice Direction, began with a Case Management Conference in which neither of the parties nor the judge thought it important to discuss anything but a standard order for disclosure.
- Disclosure of documents which are adverse to your case (as Rule 31.6 expressly requires) without duress was rejected under the American rules as being inconsistent with a lawyers’ duty to his client under the adversarial system.
- Co-operation is a function of competence, that is, you cannot negotiate a sensible solution unless both parties know what they are talking about.
- Too often in the US, co-operation comes down to “give me everything and then we will talk”. A blanket demand for “everything” followed by a boilerplate set of objections on broad and unspecified grounds is a sure recipe for costs wasted on matters irrelevant to the conduct of the claim.
- The court’s duty to consider, inter alia, the use of court resources in managing cases (one of the overriding objective factors at Rule 1.1(e) CPR) is a useful and under-used factor which would be valuable as a means of limiting costs.
- Requiring parties to say what they are intending to spend, and perhaps limiting the hours or sums they can use, is a good way of making them focus on what is important.
- Involving the client in such discussions serves as a powerful brake on wasteful expenditure.
- The Sedona Collaboration Proclamation contains extremely useful pointers to what should be expected from parties.
- It was a mistake to bury the CPR’s co-operation requirements in the Practice Direction to Part 31 (but they are no less binding for being obscurely located).
- Review by humans is inefficient. Review by keywords and other search technology is a skill which has to be learnt.
- Technology constantly outperforms the law – Twitter did not exist a year ago.
- There are opportunities for small, nimble firms who make themselves expert in this field and equip themselves with the skills and resources to take on disclosure / discovery work. Technology is seen as favouring the big firms; in fact, it is a leveler, allowing small firms to run rings round bigger ones – like Drake and the Spanish Armada, Judge Grimm suggested.
- Litigation work might be put out to tender with bidders specifying how they would approach it and what they would charge for each stage.
This may look something of a rag-bag of miscellaneous comments when set out like this. In fact they flowed seamlessly into each other, with ideas passing, as it were, from one side of the Atlantic to the other at a rate which perhaps needed the stimulus of an audience and a tight deadline to achieve. Once again, the only complaint I heard was that we needed more time than had been allowed for this session. I have plans for a repeat match, perhaps on the other side of the Atlantic, to ensure that we build on what we have started.
The most interesting area of cross-fertilisation to emerge concerns the potential for costs-control which comes from making parties identify in advance what costs they intend to incur under different headings. That arises in the US more usually in the context of mediated settlement discussions than in formal case management (although Judge Brown makes parties do this at CMCs and Master Whitaker has done it in the management of Queen’s Bench Group Litigation orders). It is about to be the subject of a formal trial in the UK which I will write more about shortly.
Master Whitaker had to leave as soon as the panel was over. The rest of us – Judge Brown, Judge Facciola, Judge Grimm, Patrick Burke and I – went to see Lord Justice Jackson at the Royal Courts of Justice. Sir Rupert Jackson’s Preliminary Report on civil litigation costs was released only a few days earlier; its consultation period is quite short – until 31 July – and he is collecting reactions and comments. He had already met Judge Facciola as part of his fact-finding world tour, a visit which was the source of much of the US coverage in the e-disclosure section in Part 8 of the report.
Lord Justice Jackson has set out a range of suggestions in the section headed 6 Review on page 397 of his preliminary report. E-disclosure is only one of the areas which the report covers, and it will be an enormous task to cover them all, even if Sir Rupert’s yardstick is that “Justinian rewrote the rules for the entire new Holy Roman Empire in fourteen months” as he apparently said at the launch of his preliminary report. It would clearly be helpful if those with comments to make were to pool them with others whose interests and viewpoints are similar.
Then it was back to Piccadilly for the final event of the day, my courtroom drama about two unprepared advocates who find themselves arguing disclosure points in front of the demanding Judge Grimfach. I will write about that separately.