The first session at the Thomson Reuters e-Disclosure Conference in London last week was called The Continuing Challenges of Preservation, Collection and Exchange. George Socha’s panel included a solicitor, a software provider and a judge – Matthew Davis of Lovells, Stephen Whetstone of Stratify and HHJ Simon Brown QC.
Judge Brown said that the court is interested in the material, and only the material, needed for a decision. The point at issue in Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) (08 October 2009), on which he recently gave judgment, was not a difficult one. The judge is the end user of the disclosure process and needs contemporaneous documents. He had been given many documents which were not relevant to the issues which he had to decide, but not the ones which actually mattered. Witness statements drawn up by lawyers are often not worth the paper they are written on relative to the contemporaneous documents, in this case the records of telephone conversations.
Given the state of modern technology, it should not be difficult to find such documents. There was no question of malicious concealment in this case, but if documents were missing then someone was to blame. Although there was no duty to keep documents prior to the threat of litigation, there was a serious risk of an adverse inference if it proved not possible to produce them. A proper search must be put in hand right at the outset.
The issue was not limited to banks or other commercial entities. The Baby P case (where drafts of critical documents were not produced until a new lawyer joined the Council and made a proper search) showed that public bodies similarly need to produce the documents to prove their case.
For Matt Davis, the key defect in many cases (in both law firms and their clients) was the lack of both a policy as to how to be ready to handle cases generally and a strategy as to the immediate case. Steve Whetstone zoomed in on the difficulty of agreeing issues. Judge Brown said of this that he often finds himself doing this for parties (“this is what you have to show”) where, as he put it, he did not have the heart to punish a firm. A failure to obey the rules is, he said a different matter – that is professional incompetence. George Socha suggested that there was a fundamental rule best summarised as “don’t diss the judge” – a neat encapsulation of one of my own mantras which is that there is plenty one might be excused for getting wrong because it is difficult (like deciding on the issues, perhaps) but screwing up over simple rules is not one of them.
Matt Davis observed that it was not always possible to distinguish between ignorance and deliberate default now that keeping records was no longer the job of “the guy in the brown coat” who used to look after the paper files in their single store. That relative simplicity, Steve Whetstone said, probably explained why there were few sanctions cases in the days of paper – a closer attention to professional duties and a higher degree of skill and knowledge was required now. The UK may not have US-style sanctions, but losing your costs is a fairly rude shock.
Damage to reputation, risk of negligence claims, and the possibility that the clients will go elsewhere were cited as obvious things to consider. No-one wants their name associated with Digicel II or Earles II, said Matt. The mystery, perhaps, is that professional indemnity insurers take such little interest in the subject – it affects them both in assessing premiums and in their capacity as serial defendants, and you would expect them to be a force for improved skill and knowledge in this most expensive – and increasingly risk-strewn – area.