The default map of the world shows Britain in the middle and near the top, with Alaska at top left and New Zealand at bottom right. Perhaps that is because Europe invented the Greenwich Meridian; maybe it is a legacy of Empire or a conspiracy of cartographers (the phrase is Tom Stoppard’s); possibly the maps in Australia are centred on Canberra, with Iceland and Cape Horn as their left and right extremes. By any measure, anywhere else is a long way from Australia. Its influence in the world of electronic discovery is disproportionately large.
I took this as my introduction to a speech which I gave in Sydney a few days ago. My original intent was to show how small the e-discovery world is, and it was only as I sketched out the connections that Australia’s bulk in the picture emerged.
US speakers there included Browning Marean of DLA Piper LLP in San Diego, George Socha of EDRM fame, and Albert Barsocchini of Guidance Software. Browning, George and I often coincide at conferences in the US and the UK. I saw Albert at CEIC in Orlando a few weeks before, when I shared a platform with Australia’s Seamus Byrne, another speaker at the Sydney conference. In the audience was Michelle Mahoney of Mallesons Stephen Jaques of Sydney and Melbourne, whom I see at least once a year when she speaks at LegalTech in New York.
When, a few days earlier, I had sat on a panel in London with two US judges and two UK judges, Jo Sherman of eDiscovery Tools and Geoffrey Lambert of KordaMentha had been in the audience, and both had been welcome visitors at my home in in Oxford. The UK’s Lord Justice Jackson had visited Australia in May as part of his fact-finding tour for his litigation costs review and had spoken highly of the Australian Federal Court rocket docket at a conference which I chaired in London a few days earlier. Jo Sherman had been very helpful to Master Whitaker’s drafting group, bringing the experience of her involvement with Australia’s Practice Note 17 to our discussions about the UK’s draft new Practice Direction, and she, George Socha and I had sat on a panel together in New York in February.
I had just come from a meeting of the Sedona Conference in Barcelona at which Sandra Potter of Australian-based consultancy firm Potter Farrelly had played a leading role, and given me some helpful material on costs. The UK’s Judge Simon Brown QC would be speaking at a conference in Hong Kong in July at which Browning Marean and Seamus Byrne would also speak.
No doubt we would all manage all right if we stayed in our own silos. Many lawyers in the UK seem to think that electronic discovery is all an American plot to destablise the common law legal systems and that it is somehow their fault that we have to handle all these electronic documents – another example of US economic imperialism, like Coca Cola and McDonalds, whose domestic enthusiasts are letting the side down by joining in. Certainly the airlines of the world would be worse off if we all stayed at home. The reality, of course, is that the problem of dealing justly and proportionately with large volumes of documents is a problem common to all these jurisdictions, and that the exchange of ideas between those who influence the rules is vital if we are to take the best and avoid the worst of each others’ experiences. That was why Lord Justice Jackson went round the world in May and that is why we welcome each other’s input at conferences like this.
I will come back to the rest of my speech below. The first day was opened by Browning Marean who gave a summary of US developments which emphasised the growing concern of many in the US about how to tame the discovery monster. The fear of sanctions was a big driver; the courts’ concern about costs had not translated into effective action to control them; competence was an issue (watching an incompetent lawyer was “like watching a clumsy ballerina” as US Magistrate Judge John Facciola put it); co-operation was on the agenda, thanks partly to the Sedona Co-Operation Proclamation and partly to the Opinions of some Magistrate Judges – but the Opinions of Magistrate Judges do not make law; he took us through some cases whose conclusions should be persuasive if not binding, covering topics such as identifying the time when litigation is reasonably expected, the need for a discovery plan, being able to show how discovery decisions were made, and various discovery abuses including one (in Keithley v Home Store) described as “among the most egregious this court as seen”.
Hearing such recitals of discovery abuses, I sometimes wonder what is the key differentiator here. One could easily get the impression that American civil courts are full of serial document abusers, whereas we hardly hear of such things in the UK outside cases involving fraud or other criminal activities. Are we such honourable gentlemen and ladies that we do not conceal or falsify evidence? Are our courts too naïve to spot what American judges can sniff out at a thousand paces? It is clearly seen as problem in Australia, or at least in Victoria where, as Browning pointed out, the Crimes (Document Destruction) Act 2006 makes it a criminal offence to destroy documents that are, or are reasonably likely to be, required as evidence in existing or potential legal proceedings. I suspect that part of the answer lies in the very strong incentives which an American lawyer has to show sanctionable conduct in his opponent. Whilst not ignoring the possibility that some English lawyers and their clients behave in a way which, if discovered, would amount to contempt of court, I doubt that too much injustice results from deliberate abuse of the disclosure process. We have problems enough trying to get people to read the rules at all.
Michael Wall, the eRegistrar of the NSW and ACT Federal Court talked about Practice Note 17 on the use of technology in the management of discovery and the conduct of litigation, paying tribute as he did so to Jo Sherman’s work on it. It was, he said, designed to respond to the reality that most documents are created electronically, and had case management as well as technology objectives. The term “electronic discovery” is not a term found in the rules, and a Practice Note does not replace the rules. It sets out broad parameters for court and practitioners to consider and it describes, rather than defines, the nature and impact of electronic documents.
The Practice Note, he said, aimed at active case management – this term is found expressly in the UK’s CPR, just as the express obligation to achieve “the just resolution of disputes as quickly, inexpensively and efficiently as possible” has echoes in both the UK and US rules. A key differentiator is the individual docket system under which judges manage their own cases. The UK has this only in the Commercial Court and the Specialist Courts such as the Mercantile Courts and the Technology & Construction Courts. It does not, it has to be said, always work for us, but I have the impression that the Australian courts manage things rather better. As Lord Justice Jackson observed recently, a judge who has managed is own cases should be “estopped from complaining” if all does not go to plan. His preliminary report into litigation costs (Part 8, Chapter 41, Paragraph 4.9) refers to “lack of adequate and continuous case management by an informed Master/Judge”
Discovery plans are a major element under Practice Note 17. Parties are required to make a discovery plan and their meet and confer may be in front of a judge. A pre-discovery checklist must be completed. An English discovery plan too often amounts to a quick agreement in the corridor covering no more than the number of days before lists are exchanged, which the judge then rubber-stamps – that is more or less what happened in Digicel v Cable & Wireless anyway.
Michael Wall pointed out that there was no right to discovery in the Federal Court – it requires leave. It is often overlooked that standard disclosure under the CPR follows an order (Rule 31.5(1)), although the subsequent references to the court ordering , or the parties agreeing, that standard disclosure be dispensed with appears to imply that it is the norm – as indeed it is.
Observing proportionality is not an express obligation under the Australian Federal rules. Michael Wall suggested that it might become so. It means, he said, more than “how much will it cost relative to value” though my notes do not record that he expanded on this (to my eyes) perfectly acceptable definition. The Federal Court is developing a radical new Fast Track system which expressly provides for proportionality in discovery and other matters. There was resistance to the “no stone unturned” approach and this was not, Wall said, incompatible with the requirement to put all the cards on the table.
This really goes to the heart of the problem – how do we reconcile the vital tradition of full disclosure (which stems from ancient equitable principles) with the brute fact that we cannot require one party, let alone both, to plough through everything? Once a party has disclosed documents, his opponents are obliged to plough through them, as Lord Woolf observed in his reports. Yet as soon as we allow parties latitude (more latitude, that is, than the discretion already afforded by the rules as they stand, which is wider than people think), we open the door to a reaction – a US-style culture of attacking the other party’s discovery on principle or (as it often appears) on lack of principle.
Michael Wall mentioned the idea of procedural mediation on, for example, whether it was proportionate to require backup tapes to be disclosed. This, I think, is part of his role as eRegistrar and the subject takes me into waters deeper than I have space for here. Lord Justice Jackson referred in his preliminary report to the concept of “disclosure assessors”. I support this idea, but others, whose views I respect, do not. I will surrender when we have cracked the problem of the “lack of adequate and continuous case management by an informed Master/Judge” referred to above.
I would have liked to have heard more from Michael Wall as to whether Practice Note 17 is actually having an impact. Anecdotally, I hear of judges ignoring it and carrying on as if they had shares in copier and paper companies, but I have no feel for how widespread this attitude is. I am more than a little uneasy at the idea of judges picking and choosing which rules they follow, perhaps because too many of them (back home) seem to think that compliance with the Practice Direction to Part 31 CPR is optional.
Next up was Albert Barsocchini of Guidance Software. Guidance Software is a sponsor of the e-Disclosure Information Project and are contributors of much of the supplier-derived thought which comes my way. Albert said that he had come back from the future to warn Australia of what to avoid. He blamed the 1970s hunt for the billable hour which had led to mutually-assured destruction as lawyers began “not playing nicely on the playground”. Lawyers, he said, lost track of what they were there to do. This led to the FRCP Amendments of 2006 and the idea of the meet and confer which had helped, but did not solve, the issues of contention divorced from resolution of the issues. Recession, he thought, will drive us to a better answer.
Part of the solution, Albert said, lay in the development of new early case assessment techniques, which he described as a low-tech solution at least in part. This was not to ignore the extremely high-tech tools being brought to bear on ECA, but technology was only part of the solution. The rest lay, he said, in “attorneys doing their homework” or, as I put it, “the key technology lies between your ears”. Cases need the attention of a rapid response team – first responders who would triage the case. The challenges, Albert said, lay in lack of process and lack of training. The result, as I would describe it, is that every case is Groundhog Day, something new every time. The reality is that every case has common elements at least as regards discovery, which trained and experienced people could handle more cost-effectively than those for whom every case is a new dawn.
The star turn was George Socha, joint inventor of the Electronic Discovery Reference Model used world-wide to explain the process flow from information management to presentation in court. George took us through the core parts of the EDRM in a session which was, as usual, all meat. Instead of taking you through it all, I will give attention to one facet of the EDRM which is often overlooked and which George emphasised. It is taken by many (that is, the phases themselves irrespective of their codification in the EDRM) as a steady march from left to right. That is to ignore the fact that some of the arrows point both ways – Processing, Review and Analysis are shown as involving an iterative set of processes which may involve carrying back conclusions from the analysis for a further round of attention to pick up something overlooked or disregarded at the earlier stage. Recent software developments make this even easier than was the case when EDRM was new – applications which “learn” from your conclusions are capable of going back over previously discarded material for another look. The implication that omissions are curable should be an encouragement to faster early case assessment.
I did not, I confess, attend all the sessions. Three meaty conferences in quick succession, separated only by sleepless flights, gave me information overload, a backlog of writing up and a sleep deficit. Besides, I had a speech of my own to write for the second day. Geoffrey Lambert of KordaMentha, who kindly shared his session with me, gave the briefest of surveys of the Australian forensic scene (see KordaMentha picks EnCase from Guidance Software for Australian eDiscovery for an idea of his place in that scene) before passing the session to me.
I covered three topics. One came under the heading “Big issues, small world” and is summarised in my opening to this post. There are three binding forces, I said – common problems, the same suppliers bringing the same solutions, and the fact that rule-makers and influencers all talk to each other. This is a process which has accelerated dung the last year, with Australia carrying more than its share of the influence. I supplemented what the US speakers before me had said about the importance of US developments – not just the things to avoid but the more encouraging new trends towards co-operation and the importance of competence. There were signs that US thought was beginning to appreciate the merits of some of the UK rules, even if we are slow to make use of them ourselves. US Magistrate Judges like Judge Grimm and Judge Facciola had influence beyond their borders and beyond the formal authority of their courts, just as Digicel was influential in the UK and beyond although it made no new law and bound no other court. The Australian rocket docket and its case management potential was perhaps the Australian development with the most potential to influence other jurisdictions.
I said that the UK rules as regards disclosure were not properly used, and that litigation was in drastic decline thanks largely to the CPR’s front-loading of costs and poor case management. In addition to the recent cases – Digicel, Abela and Hedrich – we had pending a new Practice Direction and an e-Disclosure Questionnaire which aimed to make parties focus on documentary evidence at the outset of a case. Lord Justice Jackson’s litigation costs review (which, as I had already observed, had assimilated the Australian perspective) was expected to be extremely influential.
I ended with an extended reference to Lord Justice Jacob’s judgment in Nichia v Argos at paragraphs 50 and 51. Its assessment of the impossibility of attaining the “perfect justice” which follows from looking under every stone and of the need to “make do with a lesser procedure”, and the conclusion that “better justice is achieved by risking a little bit of injustice” ought to be engraved somewhere prominent – if we do not watch out, the obvious place will be on the gravestone of civil justice. I have made several references to this and plan an extended essay on the balance between rules and discretion and between the quest for justice and risk. These themes had already been aired by others to an extent which made it clear that Australia already has the same message, at least in some quarters.
As always, these events brought an agreeable social side, often involving discussions which carried on the debates started in the conference room. Guidance Software were kind hosts at a dinner at Becasse which, if our meal was a guide, deserves the accolades poured on it. KordaMentha took us out to dinner alongside Darling Harbour. At one evening out, George Socha, Browning Marean and I planned the WestLegal conference which is fixed for 13 November in London and which we co-chair. Two Americans and a Briton sitting in Sydney planning a London conference seems almost normal, such is the global nature of the e-discovery world. At another restaurant, Browning’s habitual promise at the desk to be well-behaved obviously incited suspicion, because we were ushered into a private dining room where no-one else could see us.
The greatest cultural contrast came at 5.30 on Sunday morning as I roamed the streets in search of a decent cup of coffee. None was to be found – but the pubs were open from the night before, full of people drinking at tables in civilized fashion where their English counterparts would be fighting and puking over each other. The British government’s relaxation of the drinking laws was meant to encourage “continental” drinking habits, and has instead turned our cities into no-go areas for those who would rather not have to fight their way (fight as in fists) through broken glass and vomit-filled streets abandoned by the police. Is this a flaw in the English character or merely another illustration of the truism that New Labour botches everything it turns its hand to?
We may have to acknowledge Australian supremacy in drinking, to say nothing of cricket. In respect of the case management of civil litigation and particularly in e-discovery, we have much to bring as well as much to learn. The interchange of ideas is valuable to both sides – all sides once America and Canada are taken into account – and conferences like this are a useful way of promoting a dialogue which is helpful all round.