A few seconds before midnight on Friday, an e-mail arrived from Abigail Pilkington, the Clerk to the Review of Civil Litigation Costs. It was a bit eerie, really. The East Wing of the Royal Courts of Justice is a cavernous, Gothic place at the best of times, like Hogwarts without the wizards. I got locked into an upper corridor one evening, many years ago (accidentally, I should say, looking for a judge to grant an injunction) and found it a disquieting experience. I pictured Abigail on her own in the gloom, conscientiously sending out acknowledgements to late submissions like mine. Closer inspection showed firstly that the e-mail was an autoreply, and secondly that it had actually been sent within a few moments of me sending my e-mail earlier that day. Perhaps the RCJ needs some wizards to look at it is e-mail system.
The message included a reminder that submissions must also be sent as hard copy. Fortunately (since the 31 July deadline was due to expire 30 seconds later), I had finished my submission with a day in hand and had noticed the requirement to send a hard copy in the nick of time. That took me back a bit – I don’t think I have sent out a hard copy of anything this century. I blew dust off the printer, and found one of those plastic spines which had fortunately survived my recent cull of office equipment which I don’t use any more. After lots of faffing about with envelopes and Sellotape, I set off to find a post office. Gordon Brown’s commitment to public services has included closing many of these essential local services, and our nearest one, some way off, is run with that surly inattentiveness which results from having a monopoly. You can’t drive to it – there is usually a queue, and the traffic wardens are the only competent and efficient representatives of our local authorities here in Oxford. So I waited for a gap in the rain, and walked to the post office, queued by the notices warning of all the services which post offices do not provide any more, had my package weighed, paid for the stamp, and trudged back to my desk.
The cost, in paper, ink, stamps and time, compared unfavourably with the few seconds it took to send the electronic version for free. It was not lost on me that the whole exercise was a miniature version of an old fashioned disclosure exercise, with photocopiers and couriers standing substitute for my printer and my walk. I don’t begrudge Sir Rupert Jackson his hard copies, but I see some irony in meeting with this illustration of the merits of electronic document handling when sending out my document about e-disclosure.
My submissions included the two main thrusts which you would expect from me. The evidential value of common law discovery was, I said, too valuable to discard; the focus should not be on changing the scope of the duty to disclose (and, in particular, to disclose adverse documents) but on the roles of parties and judges to co-operate over and to manage the process. The clients, I said, were not interested in the costly mechanics of pre-issue and pre-trial hoops and hurdles designed to compel settlement; they wanted their case heard by a judge as quickly and cheaply as possible. All the expensive dirigisme in the CPR had managed to bypass the duty to encourage, and if necessary to force, the parties to assemble and exchange the documents upon which justice turned. A justice which no one can afford is no justice, as Lord Justice Jacob emphasised in Nichia v Argos (I make no apology, incidentally, for my repeated references to paragraphs 44 to 52 of Nichia).
My other focus, inevitably, was on education (already flagged up by Sir Rupert Jackson as a central issue) and, in particular, on helping judges charged with case management to understand not only the problems, but also the availability of solutions, for handling ever-growing volumes of documents. There is, I said, a body of people – judges like Senior Master Whitaker and HHJ Simon Brown QC, in-house litigation support experts like Vince Neicho of Allen & Overy, solicitors and barristers with experience in this area, suppliers willing to talk about “applications like this” and not just their own products, all quite apart from me – who are willing and able to help judges with an area in which the technology changes all the time, and in which the interplay between rules and procedures on the one hand and document volumes and technology on the other is both critical and fast-changing.
The Jackson Review has already had an impact on this aspect of litigation. I have seen at first hand the rigour with which disclosure has been tackled – I introduced barrister Alison Potter, who was charged with fact finding about the subject, to various players able to give her a fast ramp up into it; I was privileged to chair a conference at which Sir Rupert spoke to but, more importantly, listened to, an influential gathering of people with a wide range of interests; I heard him launch the costs management trial in Birmingham; and those of us who speak about disclosure have found interested audiences as far afield as Hong Kong, Sydney and Orlando, as well as at home.
The most interesting part, so far as I was concerned, came when I was asked to organise a demonstration of some of the technology which had been mentioned in the course of Sir Rupert’s investigations. At one level, this simply involved putting some flesh on the bones of some of the terms which get bandied about – those who understand the technology (and quite a few who think they do) talk confidently of keywords, concept searching or clustering. You can describe these things till you are blue in the face, but there is no substitute for actually seeing them. Many of the demonstrations which I see are inherently flawed: suppliers are very keen simultaneously to show the full range of their product’s functionality from A to B and to make sure that the audience sees their latest gizmo. From my position, sitting in the corner watching the audience rather than the demonstration, I see the body-language which announces that the audience is lost.
When Sir Rupert Jackson is freed from his present travails and gets back to his seat in the Court of Appeal, he will perhaps get the opportunity to say to an advocate before him “what is your best point, Mr Smith?”. This was always a good way for a judge to force the focus onto what really mattered, even before the present emphasis on brevity. This represents quite a challenge even for a supplier like Equivio, whose technology for identifying and handling e-mail threads and near-duplicates might be renamed “No-Brainer” thanks to the simple and obvious benefits of its far-from-simple technology. It is much harder to make your best point if your application embraces an extremely wide range of functions.
There was a there was a wider purpose anyway to the demonstrations which I planned. It is asserted by the proponents of technology that technology is closing the gap on the volumes, that is, that we are winning the battle to keep control of the time and cost of handling disclosure documents. Sir Rupert Jackson has made it clear that all options are open for consideration, including a drastic curtailment of the scope of the disclosure obligation itself. As I have made clear above, I am a passionate believer in the need for all the evidence to be, if not considered, at least put in the frame for consideration, and am correspondingly against cutting down the obligation itself. This position has logic behind it as well as a commitment to justice – however much the rules cut down the scope of mutual disclosure, the lawyers cannot simply ignore document sources. They exist and may contain valuable evidence. I do not believe it to be right, as the Preliminary Report suggests, that lawyers undertake extensive and expensive searches solely “in searching out documents which may, just possibly, assist their opponents”. They make such searches anyway (and will do so whatever the formal scope of disclosure) to help their clients win. It seemed important to me that Lord Justice Jackson should see what modern applications are capable of doing. If he considers that we are drowning in documents anyway, his conclusion may differ from the conclusion which he will reach if he sees what technology can achieve.
The message to be conveyed was therefore an important one, involving more than merely demonstrating some functions. Amongst the constraints was that Sir Rupert Jackson could set aside only two hours. The context was the present state of technological development and not, at this stage, how the technology scales down to smaller matters – this is no less vital a consideration for a remit which extends from the very biggest litigation down to the smallest, but this review will shape the next decade and today’s leading applications are tomorrow’s everyday tools. I asked Glenn Perachio of Autonomy, Craig Earnshaw of FTI Technology, and Mike Brown and Greg Wildisen of Epiq Systems, to come and show the sharp edge of litigation support technology. They were given 30 minutes each, were given no steer beyond what I have said above, and did not see the others’ shows. We saw Autonomy’s Early Case Assessment, FTI’s RingTail and Attenex, and Epiq’s DocuMatrix.
It was like having Clapton, Harrison and Hendrix come on in turn and give you just their best riffs (the parallel is not exact, of course, but I am sure you get my meaning). They had no obligation, or time, to explain the context, were obviously not trying to sell anything, and could focus narrowly on the main message — that “applications like this” can hack through the volumes and point the lawyers to what matters very quickly. There is much more to it than this, of course – no one is saying, for example, that these applications (or any other) have levels of precision and recall which will find every document which matters and discard reliably everything which does not matter, but they will get closer to it than the alleged “gold standard” of human review, particularly when time and cost are factored in. It is not particularly helpful to get into arguments of the “my algorithm is better than yours” kind – that was not what we wanted or got. All that mattered was the illustration of what technology can do and what is meant by the terminology. Is there a precedent, I wonder, for three world-leading companies sending their best men and fitting three demonstrations into 90 minutes?
Disclosure is only a part of Sir Rupert Jackson’s wide brief. It is itself part of two topics, evidence and case management, and they are far from the only subjects being covered, quite apart from wide matters of policy going beyond the detail of rules and procedure. Sir Rupert has only five months to assimilate the substantial amount of comment and views which has been received. When he published his Preliminary Report, he referred to the fact that Justinian had completely rewritten the rules of the Holy Roman Empire in fourteen months. Emperors, of course, did not have to worry about consultation, their deadlines were self-imposed, and they could bank on a level of acquiescence which will not necessarily be forthcoming in this context.
There will undoubtedly be conflicting views amongst the submissions made to Sir Rupert about disclosure. I hope so, because there can be no one simple answer to the conflict between the search for justice and the costs of achieving it. It is clear already that disclosure will be given its due as a major element of both justice and expense. Meanwhile, you do not have to wait until November to apply your mind to electronic disclosure.