As you might infer from its name, the e-Disclosure Information Project set out with purely national ambitions. England and Wales is the only jurisdiction in the world to give the name e-Disclosure to the process of identifying, preserving, collecting and exchanging documents for litigation. If I had known that two years later I would be speaking in Brussels, Washington and Singapore within three weeks of each other, I would not have picked a name with so narrow a jurisdictional scope.
The wider I cast my net, the more it becomes clear that the jurisdictions which require discovery of documents (principally England and Wales, the US, Canada, Australia, Hong Kong and Singapore) have more similarities than differences in their approaches to the problems and the solutions raised by electronic documents. At one level this is obvious – all of these jurisdictions give pre-eminence to contemporaneous documents as the primary source of evidence, they have all seen a vast growth in volumes of evidence, and there are a limited number of ways in which court rules and procedures could develop to take account of mass documentation in adversarial proceedings in which justice is only accessible if it can be afforded. If you were to describe the problem to someone who, although suitably skilled and intelligent, had no knowledge of the developed law and procedures, you would end up with a solution whose essentials were broadly similar to those which obtain in the jurisdictions which I have named.
In practice, of course, each of these jurisdictions has looked to the others for guidance as to what works and what does not, quite apart from their common roots in English common law. The effect is cumulative and iterative – each of us looks at what happens elsewhere, modifies our own rules accordingly and, in due course, is considered by the others to see what valuable lessons have been learnt. The rate at which this happens has accelerated in the last two years, partly because the underlying problem has become more urgent and partly because a small group of enthusiasts are willing to spend their lives in the departure lounges of the world to spread the word, but mainly because the Internet has moved from being a repository of information to a real-time exchange of news and views. I can be aware of a new development within an hour. I get feedback on my articles from the other side of the world within minutes of publishing them.
My Monday this week included editing my contribution to an international section of the second edition of the LexisNexis book on Digital Evidence, attending a meeting with a couple of judges and others about the forthcoming UK practice direction, and some time in a pub with a barrister and litigation support expert, and ended at 3.00am in correspondence with an international commentator about the Société Générale case. That is as varied a set of inputs and outputs as one could hope for in a day, particularly when you add in constant Twitter contributions and e-mails from around the world.
I had to turn down an invitation to speak at the LexisNexis eDiscovery conference in Hong Kong earlier this year. HHJ Simon Brown QC went instead and was well received. The timing of the Singapore conference was dictated by their new practice direction on electronic discovery which came into force on 1 October. Singapore’s justice system has its roots in pre-independence common law. Since then, it has thoughtfully developed its own rules, taking from the UK and other jurisdictions the elements which seem to work. Unlike the UK, whose record is shameful on this, Singapore has invested in court technology in a way which makes it a serious contender to host litigation which might otherwise take place in Australia or London. It is no accident, nor is it merely geography, which has made Singapore a force to be reckoned with in many areas of commercial activity.
The point of this discursive introduction is to emphasise that although specific differences may exist between one jurisdiction and another, and however many thousands of miles and grey dawns at Dubai airport may separate them, the subject matter is the same wherever I speak, and whether it is on a platform in some far away place (Docklands next week, for example) or on the telephone or in meetings with English lawyers. The agenda for the two-day Singapore conference could be recycled anywhere; here are some welcoming people who say they read what I write; up there is a stand for Guidance Software; and look, here is Browning Marean of DLA Piper again, looking much as he did last week in Washington. Plus ça change, the French say, plus c’est la même chose, the “plus” bit signifying that the similarities increase as time goes by. Browning was Chair for Day 1
The first speaker was Yeong Zee Kin, Senior Assistant Registrar at the Supreme Court of Singapore. His keynote address was called eDiscovery Developments and Future Outlook in Singapore, and its primary subject was the new practice direction. His opening slide showed that the definition of a disclosable document in Singapore is the same as in the UK: parties must disclose documents which are favourable to their case, adverse to their case, or favourable or adverse to another’s case – a definition, it is worth repeating, which is very different from that of “relevance”. The process of giving discovery in Singapore is much the same as in England and Wales — it is initiated by the giving party enumerating documents in a list of documents and it is not, at first pass anyway, done in response to a request.
Practice Direction No 3 of 2009 adapted the existing procedure for giving disclosure of electronic documents; it sets out the practice on the same principles as hitherto, and does not change the law. The test as to whether a document is discoverable is the same as before — whether discovery is necessary for the disposal of the cause or matter or for saving costs. Yeong Zee Kin said that the Singapore courts had studied developments in other jurisdictions, including Victoria, the UK for its practice direction and the US FRCP amendments and cases about them. The Singapore practice direction provides a framework which is, for the present, on an opt-in basis. If the parties agree to use it (or if the judge so decides on an application from one party) then its provisions apply to discovery in the case.
Two things in particular struck me about the practice direction. One was the express emphasis on good faith – Paragraph 43B(1), for example, begins “Parties are encouraged to collaborate in good faith and agree on issues relating to discovery and inspection of electronically stored documents”. The other was a point made during Yeong Zee Kin ‘s speech in relation to protocols for exchange of information. The test, he said, was whether it could be complied with by a party using only readily available desktop tools.
The overriding impression left by Yeong Zee Kin’s speech was that the practice direction was deliberately intended to be a small step, part of an incremental series of steps whose course will be dictated by developments and by the rate at which lawyers and their clients make good use of the practice direction and the spirit behind it. One of the advantages in Singapore, he emphasised, was that all the judges were together in the city. One of the (many) issues which we face in the UK is that judges are on their own – indeed, this was one of the express reasons behind the recent announcement of a Judicial College in England & Wales. It now appears that electronic disclosure is not to be a topic in its own right on the syllabus of the Judicial College. Given the significance of electronic documents as evidence, and the present lack of judicial awareness about them, this seems absurd – suicidal, even, in terms of invisible exports, when Singapore seems poised to deliver both an efficient technology-driven court and judicial awareness of the significance of electronic documents.
The talk by Browning Marean of DLA Piper was called Computer Forensics: the View from a Civil Litigator, reminding us that this conference had its roots in digital forensics. Browning talked about emerging trends in technology-facilitated crimes, passing quickly over denial-of-service attacks, identity theft, phishing, industrial espionage, and internal threats such as those from disgruntled employees or relating to the theft of trade secrets. He showed that the technology and disciplines used to uncover and defeat such things were the same as those required in discovery for civil litigation, with a particular emphasis on forensic collections.
My own session was called International Parallels in e-Discovery. My primary purpose, as usual, was to draw attention to the fact that, in Singapore as in the UK, the rules are, for the most part, really statements of the parameters within which discretion should be exercised. The Singapore practice direction says in terms that it is for “disposing fairly of the cause or matter or for saving costs”. This parallels our “overriding objective of enabling the court to deal with cases justly” and the FRCP commitment to “the just, speedy, and inexpensive determination of every action and proceeding”. The other themes common to these countries were, I said, an emphasis on competence and cooperation. The UK system suffered from poor judicial case management, particularly with regard to disclosure of documents. We could not properly criticise our own rules until we started using them properly.
We hoped for changes – cases such as Digicel (St Lucia) v Cable & Wireless, Nichia v Argos and Earles v Barclay’s Bank made it increasingly difficult for parties and judges alike simply to ignore the rules. Our own proposed new e-Disclosure practice direction and e-Disclosure questionnaire, together with the anticipated impact of Lord Justice Jackson’s review of litigation costs were, I said, likely to have positive effects. This approach, I said, was best illustrated by a quotation in a conference speech by HHJ Simon Brown QC who said:
The judge is the end user of all this disclosure activity. What I want to know is this: what is the case about? Which of the issues really matter in getting to the heart of the dispute? Can we split the case up and limit disclosure to the subjects which matter, or which matter most?
This was the same Judge Brown who had recently delivered the judgment in Earles v Barclay’s Bank. That judgment, although giving emphasis to the rules and the practice direction, was grounded firmly in the importance of documents as evidence enabling a fact-finding judge to reach a just conclusion quickly. The point of the rules was not their slavish adoption for their own sake. The Earles trial would have been much shorter if the material documents had been produced and they might, indeed, have made the case fit for disposal summarily.
I ended with what I consider to be the most important single idea when parties and judges consider the scope of disclosure. The springboard is Morgan J’s reference in Digicel to what I summarise as the “no stone unturned” approach to litigation. Morgan J put it thus:
“… what is generally required by an order for standard disclosure is “a reasonable search” for relevant documents.
Thus, the rules do not require that no stone should be left unturned. This may mean that a relevant document, even a “smoking gun” is not found. This attitude is justified by considerations of proportionality. The point is well made by Jacob J in Nichia Corporation v Argos.
The source for this can be found in paragraphs 50 and 51 of Nichia.
Seamus Byrne brought us back down into the detail of computer forensics with an excellent explanation of what is involved in a detailed examination of a computer and what you might expect to find. The purpose of such explanations is not to equip lawyers to roll up their sleeves and engage in amateur forensics – far from it. The point is to show what sort of information can be found by those equipped with the skills and the technology to do it. If this seems remote from everyday contractual disputes, it is far from theoretical when an employee is bleeding your information stores for material with which to start his own business. Once you know that it is possible to deduce (and not merely to deduce, but to prove) that certain websites have been visited or that a particular USB device has been connected to your computer at a particular time, then the range of evidence that you can find, to say nothing of its quality, improves immeasurably. To put it another way, if you do not know that these things are possible you are not equipped to advise a client who may need the skills. That is called negligence.
David Holloway, Chief Operations Officer at FTI International Risk, rounded off the day with a talk whose main interest lay in a series of war stories. It is, frankly, quite hard to give a dramatic retelling of a processing saga, or to describe a document review exercise in terms which makes it sound exciting; you can, however, often make an interesting story out of some of the engagements of forensic investigators.
I was the Chair for the second day, which meant that, unusually for me, I had to attend every session. I do not need the added stimulus of jetlag to fall asleep at events in which I am not participating, which is why my wife always takes care to sit next to me at concerts to prod me awake. Fortunately, the sessions were good enough to spare me the embarrassment.
By good fortune, this conference coincided with a visit to the Singapore judiciary by Senior Master Whitaker, whom I got to know originally when he invited me to join the group drafting the new UK practice direction. I described to the audience the daunting corridor where the Queen’s Bench Masters sit which was, I said, unchanged since I was a regular visitor there as a young solicitor. The QB masters were, in those days at least, a fairly terrifying lot, and I did not then envisage that I would one day find myself sharing platforms with the Senior Master on three continents within three weeks.
We were joined by Browning Marean for a panel called Judicial Involvement in Case Management and Costs Management. The Senior Registrar had already told me that Master Whitaker’s input for the Singapore judges had been extremely valuable, particularly on the subject of costs management. Browning Marean has long been committed to the idea that being able to predict costs, and to update those predictions as a case progresses, is a recipe for client retention as well as a lawyer’s duty.
Among the subjects which came up was the increasing wish of clients to be involved when costs are discussed in court. This is encouraged in the present trial of costs management which is taking place in Birmingham, where the clients’ view on the costs to be incurred may well not match up with those of their lawyer. The lawyer may, genuinely and correctly, estimate what sums are likely to be spent pursuing a particular issue. The shake of the client’s head at the back of the court does not necessarily imply disagreement with the lawyer’s estimate, but his reappraisal of the value of pursuing a particular point. One might think that this sort of thing should have been thrashed out before the hearing, but that is to under-estimate the potential for a more disciplined approach to emerge under the judge’s questioning.
We were followed by the Honourable Justice Ian Gzell of the Supreme Court of New South Wales, Australia. The most interesting part of his talk concerned the use of an electronic database called ECM for managing large cases. This involved the creation of an electronic forum whose participants included himself, his staff, and representatives of the parties, and which allowed explanations, applications and orders to be filed. He had a rule, for example, that matters like discovery objections were to be lodged by 6.00am. He then made decisions (and I mean “then”) and got them to his staff by 8:00am. He could thereafter devote the day to hearing substantive points. One can see how one might crack through a very large case relatively quickly with this kind of approach. It would be easy to assume that it was just the technology that made this possible. So far as I can see, the technology was merely the enabler for a human system of prodigious output – a necessary enabler, but these things are only as good as the people using them.
Scott Nonaka of O’Melveny & Myers gave a talk called Digital Forensics in Commercial Litigation which built on what we had been told about the mechanics of digital forensics and showed how they can underpin the case. Specific examples given by Scott included challenges to opponents’ assertions e.g. about the presence of an executive at a meeting and the authentication of diary entries to establish, for example, whether or not they were made contemporaneously.
Beth Patterson is Applied Legal Technology Director at Allens Arthur Robinson. The focus of her talk was early planning and the most important points arising from her session were those to do with developing a plan and assembling a team. The word “process” is used liberally in this business to mean a wide range of usually technical things. The process which is often overlooked is the largely human one of deciding priorities and allocating the right resources to the stages. Those resources, as Beth reminded us, included the client whose input, as well as his expectations, had to be managed along with the in-house team.
The closing panel was called Anticipating the Future of e-discovery in the Asian Business and Legal Context. Scott Nanaka and Beth Patterson were joined by Wendell Wong of Drew & Napier and Brian Tan of Keystone Law Corporation. The overall impression from this business perspective was consistent with the Senior Registrar’s opening. The dominant feeling was one of measured steps rather than gung-ho enthusiasm. That is not a bad approach in a post-recessionary world. There is a temptation in the West to view Asia as merely a marketplace; a more sensible approach would view it as a source of competition, and in the provision of legal and professional services as in other things.
I thoroughly enjoyed this conference. Josephine Voon and Madelyn Kia of LexisNexis brought the same quiet efficiency to running the show as they had brought to assembling it. If they decide to do other conferences in Hong Kong and Singapore, I will be very pleased to take part.