You can generate a lot of notes in six conference days in three countries in nine days and have little time to transcribe them. I am quite good at actually recording what people say, less so at the small but telling details like headings and page-numbering. I can generally rely on my memory to fill the gaps in my notes (and the bits I cannot read) but that is a tall order when information has rolled at me continuously for days like infantry at the Somme. Ark Group’s e-disclosure conference of the beginning of last week seems a distant memory on a cold, wet dawn in Sydney ten days later when I started writing it all up, still more in the dark aeroplane cabin surrounded by snoring travellers on the way home when I finished it off. There was lots of good stuff said at the conference, but I doubt you would read a verbatim account even if I could set it down. What follows is a summary.
The chairman on Day 1 was Lee Gluyas of DLA Piper UK LLP who, as in previous years, was well up to the challenge of keeping speakers to time. Lee’s opening comments identified a positive shift over the time he had been filling this role, a greater awareness of the issues and the need to grapple with them.
I made the opening keynote speech with the title The Empty Bear Garden – disappointing those who misread it as Beer Garden and thought I was going to tell them about a little-known alfresco hostelry. I have already foreshadowed its outline (see Labour’s fall may be matched by litigation’s recovery) and will write it up in full in due course. I began by saying that the organisers had given me carte blanche to speak on any topic: there was a practising litigator, Richard Harrison of Laytons, to talk about the rules and cases; Master Whitaker would speak about the new Practice Direction; Vince Neicho of Allen & Overy would deal with the nuts and bolts; the Report on Litigation Costs would be covered by some bloke called Jackson. All my usual topics were taken, so I could speak on anything which interested me.
My particular passion outside case management is the misuse of their discretion by unthinking busybodies who rely on a vastly expanded body of laws and rules to excuse ever more intrusion into our lives. Civil litigation had also seen endless extensions of the rules, and vagaries in the use of discretion. No-one (not me anyway) would class the judges with the aforementioned dim busybodies (nor indeed are all those officials as bad as others), but we needed a better, better-informed, and more consistent use of judicial discretion than we were getting. My examples, I stressed, were set up as a contrast, not a parallel, with judges.
Next came Richard Harrison, a litigation partner at Laytons, to give us the practitioner’s perspective on what the court expects. That expectation is not always founded on any real understanding of what matters, and Richard gave one particularly telling example of an order made for disclosure which resulted in a £80,000 bill and not one additional document worth finding. He was followed by Senior Master Whitaker with the view of the case management judge – one in a position to influence case management generally by virtue of his position as pilot of the new e-Disclosure Practice Direction and Questionnaire. The cases – Digicel, Abela and Hedrich were considered alongside the Practice Directions, both that which we have and ignore and that which is to come and which we will not be able to ignore.
Master Whitaker, as always, packed a lot into his 45 minutes, surveying Woolf’s attempt to reign in discovery and its failure – few practitioners observed the potentially very great distinction between Peruvian Guano relevance and the much narrower definition of a disclosable document in the 1999 CPR which requires disclosure only of documents which support or are adverse to the giver’s or any other party’s case. The proposed impact of the 1999 rule change was negated as much by that neglect as by the very great increase in volumes since then. All electronic sources of information were potentially disclosable, not just electronic versions of traditional documents. The key is the scope of a reasonable search, Master Whitaker said, in circumstances where we can no longer point easily to where our “documents” lay. He pointed to Jacob LJ’s analysis in Nichia v Argos (paragraphs 50 and 51) which spelt out the possibility that a reasonable (that is, proportionate) search may well miss the smoking gun – a point reiterated by Morgan J in Digicel (St Lucia) v Cable & Wireless.
Digicel was, Master Whitaker said, a text-book example of the importance of discussion, agreement where possible, and judicial direction where agreement could not be reached. The arguments run by the defendants to the effect that the role of the court was simply to review the decisions made by the solicitors conducting disclosure (“the old-fashioned judicial review test” he called it) were not going to be accepted. The discussion stage is compulsory, and if agreement could not be reached then the CMC should be restored. If that advances the case then it should be on a costs-in-cause basis.
Master Whitaker summarised the purpose and effect of the e-Disclosure Questionnaire which is to be part of the proposed new Practice Direction. If asked for advice on the general approach to be taken, he would say that search and disclosure should be issues-based from the start – one should think through what is NOT necessary. There should be a discussion as to a litigation hold as soon as litigation is contemplated. Parties should let the other side know what is expected of them as early as possible – it was an intended part of the new e-Disclosure Questionnaire that you should set out what you expected the other side to do.
It was observed from the floor that court involvement often came too late. The practical problem, Master Whitaker said, was that more resources had to be put into interlocutory judges. This subject was to recur on the following day when it was raised in Lord Justice Jackson’s session.
It was encouraging that Master Whitaker got a good show of hands when he asked who knew of the Practice Direction to Part 31 CPR, the one which governs the handling of electronic disclosure. I once (and not so long ago) got a complete no-show when I asked that question of an audience whose attendance presumably signified some interest in the subject. Perhaps we are making some progress. Master Whitaker drew attention to Lord Justice Jackson’s request for input into his report – Sir Rupert, he said, would absorb whatever was sent to him and anyone with a view should get on and express it.
Law and rules go hand in hand in this context with the technology challenges of preserving, identifying and collecting the information which is to be disclosed or, strictly, from which a selection will be made for disclosure. Robert Brown of First Advantage gave a talk on best practices in forensic investigation. This is a subject which few lawyers need to know about in detail but which most need to have in overview. There are a few absolutes here and a great many variables, and every litigation lawyer – and not just those in commercial litigation – need to know what can be done, what the options are, and what in broad terms are the costs implications of one course rather than another. They need to know where lie the boundaries of their knowledge – and who to ring if they realise that they have reached those boundaries. Get to know at least two collections experts, agree their rates and business terms, and keep their numbers on speed-dial.
A panel discussion followed, with Vince Neicho, Litigation Support Specialist at Allen & Overy, Greg Wildisen of Epiq Systems and Master Whitaker. In that ideal world which we so rarely see, the law firm, the software and services provider and the judge should work together rather like rugby backs moving the ball towards the line which is their common target. This particular team had played together before, in Hong Kong in May, and a minimal amount of refereeing (or moderating as we call it this in context) was needed by me to keep the ball passing between them.
Next came Vince Neicho, talking under the title Adding value to your case with litigation support management. In a firm which does litigation support properly (and Allen & Overy is one which does), that function is not just an additional profit centre. The litigation support experts need to know the rules, understand the technology and bring common sense to a part of the legal process which often lacks it (I talk of A&O’s opponents here, of course). Vince said that US litigation support managers were often part of the technical IT function, whereas his role was as part of the legal function. Having heard Vince describe what that role comprised and the skills needed to carry it out, one observer said rather cynically “You have got the job, Vince”. The reality is that Vince has been in this game longer than anyone, and effectively defined what the role entails.
Mark Surguy, Legal Director at Pinsent Masons in Birmingham, used the heading E-Disclosure and the Reasonable Man. I had this subject put on the conference agenda to remind us that whilst the rules focus on what the court requires, and whilst the technologists might easily see disclosure as a purely technical exercise, the client just wants to win his case as quickly and cheaply as possible. My own approach to this turns on binding the client into the decisions, that is, being able to explain the costs, risks and benefits in terms which make the client an informed participant in the decision-making process – perhaps the hardest part of the whole exercise. What is the duty owed by that icon of professional responsibility, “the reasonable man” when all the old certainties are drowned in volumes of documents too great to read and technology which changes monthly?
Mark Surguy cleverly approached this from left-field by analysing the events behind the wasted costs application in Hedrich v Standard Bank London. Negligence was alleged here, but not the conventional negligence of lawyer vis à vis his wronged client. The client was the wrong ‘un and the solicitor’s failing, so it was alleged, was in not spotting it, in breach of his duties to the court, and to the very significant detriment of the opponents. No final determination was needed on causation in this case once the negligence claim failed, but, as a veteran of two peculiar causation findings several decades ago (on which I will not pause now), it is that aspect which is as interesting to me as the negligence allegations, in an area where so much of the factual material emanates from the client. It is, Mark Surguy pointed out, not up to the client to decide what is relevant, and the interests of lawyer and client may diverge. I will cover Mark’s talk more fully in due course, not least his question as to whether we need to think about recasting the professional obligations.
Patrick Kos of F Hoffman–La Roche is a well-known speaker on document retention, and it was no surprise to come across him again two days later at the Sedona Conference meeting in Barcelona. The company had kept on storing e-mails down to the FRCP Amendments of 2006 when its place in the US market obliged it to comply with 26(b) not least because of one particularly large litigation action. The employees were extremely protective of their messages. A division was made between “official records” and “convenience records” and between Europe/Canada, the US, and Asia-Pac reflecting existing storage locations. The convenience records were put on a destruction rota – they were destroyed if not read within 90 days. The end date for such records was fixed at 3 years as a compromise between the suggestions made from different jurisdictions. The detail matters less than the implicit message that yesterday is too late to begin to get your house in order. The idea that “email is a communications tool not an archive tool” may work in many industries, but not in all.
A no-show by the last speaker of Day 1 gave us an early finish. Jim Kent and Adam Page of 7Safe , the latest sponsor of the e-Disclosure Information Project, and a sponsor also of the conference, hosted a dinner at a restaurant nearby. The early start gave hope of an early release to bed, but that is to under-estimate forensics guys as a source of anecdote. Perhaps it is the quietness and discretion with which they have to comport themselves for the day job which makes them so full of stories when night falls. Vince Neicho also is a good source of tales from the distant past, and it was suddenly late. The far end of Earls Court is not exactly the back of beyond, not quite anyway, but it nevertheless seemed surprising to bump into barrister Clive Freedman in the street outside. Vince and I are members of Master Whitaker’s drafting group and it was something of a coincidence that another member of that small band should pop up in the street.
The hotel was not as bad as it looked – just as well, since it looked like a high-rise pile of brutalist Portacabins. You would feel a bit aggrieved if you had booked to spend your honeymoon there, but as a clean and functional alternative to flogging back out to Oxford it was acceptable.
I was the chairman for Day 2, which brings with it various implications, not all welcome. You have to sit through every damned session for one thing, even the records-keeping ones. You can’t whisper derogatory comments about the speaker to your neighbour because your only neighbour is the speaker. You can’t slip out for a quick cigarette or a decent cup of coffee – if such a thing were to be had at the back end of Earls Court.
First up was Daniel Burgwinkle of Credit Suisse with a speech called Mitigating the risk of failure to comply with solid records management in e-Disclosure. It really needs a twin speech called Enhancing the probability of success with transparent records management for those whose glass is half-full. Never mind. Daniel ticked off the reasons why a large company would invest in a properly-controlled exercise. Discovery was only one – compliance, reputational risks, a need to control misuse of data were all part of the motivation.
At that point we found ourselves a speaker down. I wasn’t sufficiently curious to find out what had happened to him in the musical chairs which followed. The advertised plan for the closing panel was that it would comprise Vince Neicho of Allen & Overy, Mark Surguy of Pinsent Masons and me. Vince had suggested adding Alison Potter of 4 Pump Court, the barrister who did the research and leg-work behind the e-disclosure section in Lord Justice Jackson’s preliminary litigation costs report. We decided to bring that session forward to fill the vacated slot, notwithstanding that we had intended to use the last tea-break to decide what to say by way of round-up and as yet had no agenda.
It is unconventional, of course, to have a round -up at the beginning of the day, but there was another pressure upon us – the RMT was due to bring London’s Underground to a halt at 17.59, so we would have to finish early. Star turn was Alison Potter, whom I invited to tell us about the transition from near-neophyte to author of an impressive summary of e-Disclosure. Alison was quick to make it clear that Lord Justice Jackson had written his own report. Her own experience of electronic disclosure was limited to a case which, for various reasons (none undermining the principle of electronic disclosure), had been part-done electronically and then reduced to paper. It was clear, she said, that the Bar had to make the transition from paper to electronic disclosure. That would involve them understanding that this is because the documents are now electronic rather than because there is a new-fangled way of handling paper. Do we really still have to explain this? We do, of course – much of the problem which we have today derives from making false assumption as to the scope of others’ experience – and, indeed interest – in that which interests us. We forget that many judges never had cause to use a computer whilst in practice.
Alison also made the point that the Jackson Report is about costs and that you cannot divorce costs from the issues.
Stuart Paterson of Herbert Smith spoke to the subject How to manage disclosure in an international dispute. If co-operation is an unfamiliar concept between two English parties, it is even less so in some other cultures. It is, Stuart said, common in international litigation to flood other parties with discovery to create delays or to hide something. Aggressive use of speculative special disclosure applications distract opponents, and it easy for solicitors to write long-winded letters.
The problems and expense of data collections are magnified when parties are abroad and particularly so if they are in more than one country. The very nature of UK disclosure, with its apparently voluntary uncovering of documents which are adverse to your case, is a powerful part of the evidential reason for retaining disclosure – but it is an extremely hard thing to explain to those brought up where other rules and customs apply. The fact that privacy and data protection laws vary between jurisdictions does not make life easier.
A recurring theme in Stuart Paterson’s talk was training – lawyers understanding the rules, judges knowing how to apply the rules, clients being educated in our ways, knowledge of what providers have to offer being passed through firms, and so on. If some of this might be taken for granted in a big firm with a litigation reputation, Stuart’s references to project management skills and training were less mainstream. Herbert Smith, he said, recognised the value of project management training both generally and for handling disclosure. We might just pause there to consider why that matters. There may be a number of players involved in a disclosure process; there are materials which must be handled (identified, collected, processed or whatever). Some of these things must happen before others, indeed before it is known what other steps might be needed and what their range and scale may be. I have said enough, I think, for it to be clear why project management skills may be needed. Lawyers, of course, believe that they leap fully-formed into such roles – like marketing, human resources, accountancy and all the other things which lawyers like to think they do naturally.
The speaker most eagerly awaited by the audience was the author of the eponymous report, Lord Justice Jackson. He had come in part, he said, to invite input into his final litigation costs review. Its aim was to promote access to justice and proportionate costs and to consider, amongst other things, case management and costs management. He had, he said, spent four months fact-finding and had reached some provisional conclusions. Three months’ consultation now followed, after which there will be firm conclusions. Seven assessors sat with him; eight lawyers had researched different topics (including Alison Potter whose input he acknowledged); three judicial assistants had been seconded in turn from large firms.
One size does not fit all, Sir Rupert Jackson said. Low-value personal injury claims were not problems for that audience but the costs of disclosure were significant for big commercial cases. Changing the name of the process from discovery had done nothing to solve the problem. We had to ask if the game is worth the candle. Are the mounting costs of disclosure justified by the contribution which disclosure brings? He identified high-value commercial disputes, IT disputes, construction claims and professional negligence claims as generating particularly high costs for standard disclosure. There is indeed, a case for saying that the costs of post-1999 standard disclosure are higher than Peruvian Guano ever was (the reference is to the 1882 case which set the relevance test for disclosure). He acknowledged that there cases which turn on the smoking gun.
He said of other jurisdictions (which he had visited) that the US had control of categories of documents, and that Australia had restricted approaches. In Melbourne he had been told about their rocket docket which limited disclosure to material which will help and which can be obtained at a proportionate cost. The feed-back from judges, customers and funders was that outcomes were fair and at a proportionate cost. Should we consider changes to the general rules of disclosure?
Various methods had been attempted for controlling costs. Costs-capping had been codified as from April this year. Costs management was to be tried. Form H was unsatisfactory. A recent meeting in Birmingham had voted in favour of his costs management proposals – they were voluntary but many lawyers seemed willing to advise their clients to participate in the pilot.
Sir Rupert invited comments and questions. Greg Wildison of Epiq Systems welcomed the pending e-Disclosure Questionnaire because it would provide suppliers with something to quote against – a document intended for the court and signed by the solicitor or client with that in mind was a more reliable source of information about a party’s systems than a letter of instruction which may have an ulterior motive in its deliberately selective ambit. Whether or not the Digicel judge was right in calling the Defendant’s experts’ report “a series of worst-case scenarios”, we were more likely to get realistic scenarios from the thought-through and public results of a questionnaire. Greg also gave his view (with which I concur) that technology is catching up on the problems which technology has created. If this is right, then it affects our whole approach to disclosure since the opposite conclusion – that we are sinking beneath a mass of information which we never tame – will tend to the conclusion that we should scrap disclosure.
I have written separately about Sir Rupert’s challenge to suppliers to play their part in bringing down the cost of disclosure (Jackson conference challenge to litigation support providers). Amongst the other topics covered in the ensuing discussion were:
- an equivalent to the US Special Masters to take the burden of vexed disclosure disputes away from case management judges (on which there are diametrically-opposed views)
- the possibility of work for both parties being performed by a single supplier (seen, alas, to have limited appeal on a voluntary basis but worth considering as a matter of compulsion with a view to a culture change over time)
- the need for earlier judicial involvement, which raised the possibility of deferring what are presently pre-action protocols until after issue so that early assignment to a judge, and the risk or benefit of costs orders, became possible (thought to be a good idea if it could be done without prejudice to jurisdictional challenges).
Each of these raises important questions which time and space do not allow me to explore here. It will not have escaped the audience that Sir Rupert diligently noted down what was said in the wide-ranging discussion which followed, in each case taking care to establish the speaker’s name and firm or company – an illustration of Master Whitaker’s observation the previous day to the effect that every view will be taken into account. I was sorry to have to bring this session to an end.
We had an opportunity later to go over some this ground more fully when (as I have recorded elsewhere) the unexpected non-appearance of a speaker gave me a Q&A session for which there was no script or agenda.
If I skate lightly over the last two sessions, that is not to understate their importance or quality but more because they are on the edges of my main theme. Ashley Winton of White & Case was simultaneously entertaining and informative on the subject of the European Commission advisory review on the impact of data protection and data privacy. Sean Jeffrey of Freshfields brought us up to date on Asserting Privilege in the electronic age. These are both dense and difficult subjects. Few of us aspire to as deep an understanding of the issues as they deserve; all of us ought at least to be able to spot the elephant traps and take advice if they occur.
This conference deserved the 4,000 plus words which I have given it. There is a mass of useful information at events like this and not just from the advertised speakers – the contributions from the floor were considered and useful, and anyone working in this area, with whatever level of knowledge, would have benefited from being there. It is clear, I hope, that the phrase “anyone working in this area” means “anyone engaged in litigation” whether as client, lawyer or judge. Electronic disclosure is not an option; it is not just a new way of handling documents; it is utterly central to finding justice proportionately, and those who ignore it are implying that evidence is an optional part of disputes resolution.
As the conference broke up, Bob Crow, the vainglorious bullyboy of the RMT, was walking out of the London Underground strike negotiations saying “Excuse me. I have a strike to run”. It had become clear that he wanted a dispute, come what may, from the fact that he had, at a very late stage in the discussions, supplemented his demands for pay and job security with a call for reinstatement of two employees, one who was charged with theft and one who had committed a safely breach and then lied about it. This type of bad-faith pragmatism used to be common in industrial relations and its unacceptability is what killed union power under Thatcher. The supremacy of the personal interests of the union leaders died when the mineworkers’ Arthur Scargill (who famously “began with a big union and a small house and ended with a small union and a big house) fell beneath the wheels of a government which plugged into public distaste and the changing times.
Access to justice, by which I mean the right of individuals and companies to resolve their disputes in front of a fair tribunal, has been trampled beneath several factors, not least the removal of legal aid and extortionate court fees. We cannot expect government – not this one anyway – to help restore litigation to its proper place as a fair way of resolving disputes. We have an opportunity for self-help, however, which depends on a cultural change as deep in its small world as the crushing of union power was in its rather wider one. Those who think we can just plod along as before are as out of touch with reality as Scargill was then and (to judge by the public reaction) as Crow is today. This conference gave us some pointers to the components of that cultural change.