My heading, I appreciate, looks like the components of some random word game. There is in fact a connection, and it is to do with the supremacy of result over procedure and of destination over the journey. Hitler, the NHS and rest are called in aid as demonstrations because both came under my eye last week without their place in the jigsaw being immediately apparent to me. What really matters in disclosure / discovery is the outcome in terms of evidence considered by the parties and the court, not mere compliance with standards apparently imposed by the rules. The client is interested in the outcome, as are victims of crime, abused children and hospital patients. Rules matter, but they matter less than the end-result.
As an aside, my link to the mashup of the well-known scene from the film Downfall (see Hitler and Cloud Computing Security) brought me a pointer to Godwin’s Law from Mike Taylor at i-Lit. When I looked up Godwin’s Law, I wondered at first if I was being reproved for invoking the Fuhrer at all in the serious subject of cloud computing security. Happily not – Mike merely thought I might be interested. By Godwin’s Law a party to an online discussion who has run out of real arguments will eventually accuse his opponent of being “just like Hitler” on the basis that Hitler’s views, being different from those of right-thinking people like the speaker, must necessarily be wrong. It is related to the reductio ad Hitlerum line which might hold that because Hitler was a vegetarian, vegetarianism must be wrong. So far as I was concerned, I was merely passing on something which made me laugh and which had at least a tenuous connection with my primary subject. Only afterwards did I spot the line which connects the apparently disparate elements which appear in my heading. The connector is the question “what really matters here?”
In my post, I pulled out the one quotation from the mashup which made sense whoever said it — “it is not security standards which matter but security outcomes”. The context is the defensive explanation of the generals (for which read IT security staff) that they had adhered to accepted standards in protecting the Reich’s customer database. Hitler sneers at risk management as an end in itself and observes that adherence to standards is less important than the outcome – the fact that security has in fact been compromised. “My data has been posted from Moscow to Chicago and you talk about standards?!”
The British National Health Service is another place which has devoted immense resources to risk management, standards and compliance. Nothing, it seems, has been overlooked – except patient care. My source is a report, suppressed by the government, which, says the Sunday Times, diagnoses “a blind pursuit of political and managerial targets as the root cause of a string of hospital scandals that have cost thousands of lives”. The newspaper gives some quotations:
“Managers crowded in patients in order to meet waiting time targets and, in the process, lost sight of the fundamental hygiene requirements of infection prevention”.
“The patient doesn’t seem to be in the picture. We were struck by the virtual absence of mention of patients and families … whether we were discussing aims and ambitions for improvement, measurement of progress or any other topic relevant to quality…most targets and standards appear to be defined in professional, organisational and political terms, not in terms of patients’ experience of care”
“The risk of consequences to managers is much greater for not meeting expectations from above than for not meeting expectations of patients and families.”
If you think I have lost my thread here, go back and put the word “clients” instead of “patients” in the above extracts, and replace the references to organisational and managerial concepts with the components of the litigation process. To the client the result, for better or worse, is more important than the rules. The “expectations from above” (the judge) are very important, but they in turn must take account of the legitimate expectations of the court user (I do, of course, stress the word “legitimate”).
None of what is in the NHS report comes as any great surprise. The government’s obsession with procedures, targets and measurable statistics means (to take just two well-documented examples) that a policeman spends 20% of his time filling in forms, and that a social worker, whose desk time is estimated at 80%, has only a few hours a week to devote to people – instead of observing them and interacting with them, they are filling in lengthy forms about them and holding internal meetings to comply with managerial guidelines. The outcomes have become lost in the standards, and the standards themselves are more to do with formal compliance than with doing the job.
There was the story of the Leicestershire police who ignored repeated pleas for help from a woman terrorised by village thugs; the standards involved labelling this as “anti-social behaviour” which apparently excuses the police from turning out to help; the outcome was that she blew up her car, herself, her daughter and the family rabbit. I am sure that the Leicestershire police, like the Haringey social workers who left Baby P to die at the hands of his abusive family, were bang up to date with their paperwork.
New Labour’s approach to these things has been characterised as “hitting the target but missing the point”. Policemen, social workers, health care administrators and others are assessed (and sometimes rewarded) for their assiduity in filling in forms; the woman who killed herself and her daughter for want of decent policing, the baby who died for lack of a social worker, and the hospital patients who lie unfed in their own filth because the money is spent on pen-pushing rather than nurses, are victims whose fates are of concern to government only when they reach the newspapers.
Note that incompetence or stupidity is not necessarily a component in the failure to deliver the right outcome. The Leicestershire police clearly were incompetent, but the police generally do not choose to fill in all these bloody forms, for all that the Justice Minister derides them for preferring their nice warm offices to getting out on the streets. It is not obviously wrong that the criminal courts need some contemporaneous record of the alleged crime, nor that government expects some statistics. Somewhere between those who devise the rules and those who execute them, however, something has gone wrong. The standards, rules and processes have come to be more important than the outcomes. Think again of a client’s expectations of the civil litigation system.
The management of electronic disclosure often has similar characteristics. Leaving aside those lawyers and judges who do not understand the subject and do not want to, and who know nothing of the Practice Direction to Part 31 CPR, or of Digicel, Earles or Goodale, the next tier up are those who know about these things but do not understand their implications. You will find lawyers, for example, who well know that standard disclosure requires them to find and produce all documents which are supportive of or adverse to the case of their clients or of any other party and who know, in principle at least, that the rules do not require them to produce documents which involve disproportionate expense to uncover. Similarly, many case-managing judges could describe what their role is in managing disclosure, although both anecdotal evidence and the findings in the Jackson Report suggest that few of them actually do it properly.
You can know all that, and still overlook the core question “what is actually needed here?”. That key function of deciding what documents are actually needed to enable a fact-finding judge to find the facts gets lost, even for those who could recite the rules.
The procedural rules equate to the standards which Hitler’s generals recite in the video. Rules are, of course, necessary and without them there is no hope of a case being managed properly because no-one would know what “properly” meant. The parody Hitler is, however, correct to deride them as being subordinate to the outcome. Policemen, social workers and hospital staff must have processes and procedures, but they are things which are ancillary to their duties, not a substitute for them, and largely irrelevant to those whom they serve. It is of little importance to the crime victim, the abused child or the neglected patient that the procedures were proceeded with, in the same way that compliance with data security standards is no consolation to those whose data has been hacked.
Litigation clients are similarly indifferent to the provisions of the rules. They expect their lawyers to know the rules, of course, and to comply with them, but strict compliance with the rules is not their primary objective in instructing lawyers to bring or defend litigation. They expect their lawyers to do what is necessary to bring the case to a conclusion as quickly and cost-effectively as possible. I suggest above that lawyers and judges should focus more on the question “what is actually needed here?” rather than on a mechanical plod through the disclosure of everything which appears to fall within the definition of standard disclosure in Rule 31.6 CPR. This is not a suggestion that lawyers be cavalier with the obligations which the rules impose. It is rather that the rules be understood to provide a framework within which lawyers and court should work from the beginning to focus on the documents which are actually likely to assist in finding the facts.
Policeman and other members of the public services are not good at discretion. It is not that they are all too stupid to exercise it, but many of them are, and the laws and rules within which they work are deliberately designed to obviate the need for thought. Their reward structure benefits those who proceed with the procedures, and their disciplinary codes punish those who deviate from strict compliance. The reason why a traffic warden is not able to tear up a ticket which he has started writing is that his regulations deliberately do not allow room for intelligence or common sense.
The Civil Procedure Rules are not like that. Discretion is built into them; indeed they open with an overriding objective which positively requires the court to exercise discretion to do what is right. That broad concept applies equally to the specifics such as disclosure and, as I have put it before, most of what appears as a rule is in fact a statement of the parameters within which discretion can operate. The express obligations of co-operation imposed in the Practice Direction to Part 31 CPR go beyond merely requiring a consensual approach to a fixed target. The target is itself discretionary. Parties may agree, or the court may order, that there be disclosure on the widest possible basis, or that there be no disclosure at all. It follows from this that one can agree on a scope of disclosure which is either wider or narrower than a strict interpretation of the rules might imply.
This involves more than mere procedure. Very significant sums indeed may turn on decisions to include or exclude certain classes or ranges of documents. We need to move the test away from “what do the rules require” and down to “what do we really need?”, because what the rules really require is what is set out in the overriding objective of “enabling the court to deal with cases justly”. It is that, not the apparently rigid compliance with the definitions in the rules, which is the outcome desired by the clients.
The parody Hitler says “My data has been posted from Moscow to Chicago and you talk about standards?!”. The client will be similarly unimpressed by a model application of the rules which results in vast outlay on documents which no-one ever looks at. And since neither party can be sure who is going to end up picking up the bill, the parties have a common interest in the outcome – not just of the case itself but of the steps on the way.