I went to listen to Senior Master Whitaker speak last night to the London Solicitors Litigation Association about electronic disclosure. I was not expecting to hear much that was new to me – I have heard him speak five times in four countries in three continents in the last six weeks, so the anticipation of novelty was not why I flogged up to London. I go to anything I hear about where lawyers assemble with an interest in electronic disclosure.

It has to be said that, for a group which self-selected on this basis, the level of basic knowledge was not high. Although most claimed to know the difference between the pre-1999 Peruvian Guano test of “relevance” and the CPR definition of a disclosable document (one which is supportive of or adverse to the case of the giver or any other party), few knew of the co-operation and discussion requirements in section 2A of the Practice Direction to Part 31 CPR. Fewer had heard of Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch) (23 October 2008)
or last month’s judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) (08 October 2009) or knew of Lord Justice Jacobs’ thoughtful encapsulation of the problems in Nichia Corp v Argos Ltd [2007] EWCA Civ 741 (19 July 2007).

Master Whitaker explained that the scope of the search was now the most important element to consider, in circumstances where (unlike with paper) it was probable that clients did not know where all their potentially-disclosable documents were. The perception that it is all too difficult is no justification for ignoring documents which the rules and professional duty require you to consider as candidates for disclosure. Technology now exists to tackle large volumes. It is no answer to claim ignorance of what might bring you to a proportionate solution, just as ignorance of the rules offers no refuge for those who purport to handle litigation.

I will report more fully on this session when I get back from tomorrow’s conference, the Thomson Reuters Fifth e-Disclosure Conference at Canary Wharf (details here if you want to make a late booking).

If the skilled lawyers seem thin on the ground, the experts seem to turn up at random on every street corner. I bumped into Simon Price of Recommind near Paddington on my way to the LSLA meeting, and Browning Marean of DLA Piper and I came across Alex Dunstan-Lee of KPMG in the street as we walked away from the meeting towards Stroz Friedberg’s party in Old Broad Street where some well-known litigation support faces were gathered. I dare say we would have found the rest of the UK litigation support providers had we walked on a bit or gate-crashed a few more parties.

Not that they are difficult to find anyway – if Master Whitaker’s talk, or tomorrow’s conference, makes you want to know more about the technology solutions, then ring somebody up – click on the logos beside this post, ask other firms who they used, or ring me up and talk through which providers offer services best suited to your needs. I am getting an increasing number of calls like this, and welcome them.

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