A week of positive opportunities in e-Disclosure

There are two reasons for running a week’s worth of reports and comments into a single article. The least meritorious of them is that I will not keep up with it all if I do not do a composite post. More positively, that is because a lot has been happening and I can better convey the sense of that in a single article. The overall message is one of positive steps forward, not merely defensiveness.

The previous week ended with a session run jointly with Andrew Haslam of Allvision at a medium-sized firm with a strong regional base and a London office. It is exactly the sort of firm which I have written about as holding the key to the future, at least in my own narrow ambit – agile, versatile, staffed with lawyers trained at the big city firms, and hungry for quality litigation work. It is the sort of firm which, if it makes alliances with the right providers of litigation services and invests in the skills, could take on much bigger firms at a cost lower than theirs, partly because their costs and charging rates are lower and partly because of the way they run their litigation. I will spend any amount of time with firms like this, because they get it, and could change client perceptions about how litigation should be managed.

I covered the background — the framework of rules and cases, the implications of the Jackson Report, and where we stand with the proposed new practice direction and ESI Questionnaire. Andrew Haslam spoke about the technology which is available and what a firm needs to have in place as processes and connections to be able to run with anything which comes along. In the pub afterwards, one of the solicitors told me frankly that he had come to the session expecting to be unconvinced but, having heard us on the subject of the ESI Questionnaire, intended to send it to his opponents in a particular case first thing on Monday morning. A result, I think.

Monday found me at a city firm with a strong litigation tradition. This time, my co-speaker was Alison Potter of 4 Pump Court. It was Alison who did the research which underlay the e-Disclosure chapter of Lord Justice Jackson’s Preliminary Report. My role in that was to introduce her to a range of people – judges, litigation support managers and technology suppliers – able to supply a mixture of hard facts, opinions and demonstrations which make that chapter such an informed resource. If the chapter itself was Sir Rupert’s work, the raw material came from Alison’s researches. The division of labour at our talk was slightly different from my earlier session, with Alison taking the Jackson elements and me providing the rest.

Wednesday brought a different audience and yet another co-speaker. Practical Law Company organised a lunchtime session of ALPS, the Association of Litigation Professional Support, and Vince Neicho of Allen & Overy and I were invited to speak to them. Vince, like me, is a member of Senior Master Whitaker’s Working Party responsible for the draft practice direction and ESI questionnaire and, as we expected, we found ALPS an informed and interested audience, particularly in the light of the publication of the Questionnaire in Master Whitaker’s judgment in Goodale v Ministry of Justice. We were asked if there should be wider public consultation on these two documents. No, was my firm answer – their use is carefully limited both by their terms and by the court’s discretion, they will be reviewed after a year, and what they need is practical use in the trenches. The overriding message, indeed, in all three of these talks, was that the existing rules, the practice direction (and specifically the obligation to discuss sources) and the judicial duty of active management, give a scope which is both targeted and discretionary as a framework within which the parties and the court could do what is right. The time for just talking about it is over.

The question of most interest, perhaps, concerned recoverability of costs where technology was used to handle electronic documents. Should this not be provided for specifically in the practice direction?, we were asked. Again, my answer was that it should not; it is indeed important to know what the costs position is in this regard, but there were no published cases, and no costs judge had yet appeared willing to take a public position on the subject. Any attempt to bring in the subject via a practice direction must inevitably have become bogged down in an area of principle which, however relevant, raised questions to which there was, literally, no standard answer. It is right that there should be an answer, but just now, when Lord Justice Jackson has opened a new debate about the difference between proportionality and necessity, is not the time to try and nail down principles applicable to a specific subject.

On to the next event, a roadshow organised by Practical Law and hosted by Allen & Overy . Speakers included Professor Dominic Regan, Joanna Page of Allen & Overy and Senior Master Whitaker, with a rousing contribution from HHJ Simon Brown QC. I will in due course pick through my copious notes, but the principle message was one of judicial management and costs control. A questioner doubted whether it was in fact possible to manage the prospective costs of litigation. Of course it is possible, said Joanna Page. Allen and Overy’s clients are “bright people who ask good questions”, and the firm was used to giving estimates. Judge Brown described how the costs management trial instituted in Birmingham by Lord Justice Jackson works in practice. Of particular value, he said, was the presence of clients at costs management discussions, particularly where a nod of agreement by the lawyers was instantly contradicted by a shake of the head from the client at the back of the court (and often swiftly followed by settlement). The costs trial is described on the Mercantile Court website; the methodology allowed room for amendment as circumstances changed. Costs management is the primary objective of case management.

As always, it was the discussions afterwards which offered the best value – you need the main event to focus minds, but the real work came at the drinks later, at which judges, lawyers, and litigation support professionals kicked ideas around. Dominic Regan had quoted the Master of the Rolls’ assurance at the launch of the Jackson Report that the time for discussion was over and that now was the time for action. It is clear that some aspects of the Jackson Report do indeed need discussion, or are going to have it whether they need it or not. With e-Disclosure, we just need to get on with it, confident that judges will err on the side of caution where costs are likely to conflict with proportionality. The previous day had, as it happens, seen a good example of this, when the Court of Appeal upheld a case management decision in Fiddes v Channel 4 which had denied a party the order which they had sought for specific disclosure of backup tapes – more on this in due course. Decisions as to what is right in any case will evolve through the dissemination of judgments like this. We will not get such judgments if we just sit around consulting with each other about principles as the tide of electronic data rises around us.

Other things moved on in the background whilst these events were taking place. Arrangements are firming up for conferences in Sydney in June and Hong Kong in July at which we will spread the word about the Questionnaire and get feedback on it in jurisdictions which face the same problems as we do. Judge Brown got an enthusiastic reception when he spoke about it in Sydney a couple of weeks ago and a message came in from Canada during the week, reporting interest there. Senior Master Whitaker and I will be talking about it at ILTA Insight in London on 27 April, and it will come up also in the session which Dominic Regan and I are giving at Ely Place Chambers on 12 May. There we will also be showing some of the applications which make proportionate handling of electronic documents available to firms of any size who are willing, or who have been required, to deal with electronic disclosure.

Another talking point from the week came with the Raconteur Legal Efficiency supplement in Thursday’s Times. There is a copy here if you missed it. The chief significance of this, perhaps, is that clients will have seen it. The clients were the missing element at all the events which I attended during the week, and a publication like this in the mainstream press draws attention to what the issues are and what can be done to resolve them. From a defensive point of view, the lawyers need to be at least as informed as their clients. More positively, there is an opportunity for some to get ahead, both in their practice and in their pitches to clients.

This is the upside, which has come through more clearly this week than previously. A lot of the messaging is necessarily to do with risk – the risk of overlooking documents which matter, of losing cases or costs for want of basic understanding of the rules, or of featuring in the next high-profile case with the label “incompetent” around your firm’s neck because of some act of omission or commission which ignored or overlooked something vital. That, however, is only part of what is involved here: some of the conversations which I have had in the past week show a clear understanding that there is work to be won by those who are up with or ahead of the game. This is not just a matter of rules, processes, procedures and technology, but a marketing tool. Grab it.

I could not let the week go by without covering the latest example of the US courts’ determined campaign to get right up the noses of those whose co-operation they need to collect documents for litigation etc – see Gucci v Curveal: a blow for US interests – whichever way you understand that expression. There will be leisure enough to repent of the attitude shown there as the rest of the world digs its toes in. A particularly egregious example of destructive marketing which fouls the nest for everyone else got both barrels in my article Using marketing to make people hate you.

Given all that, you will understand if some of the excellent and interesting material which has been sent to me this week has not had the attention which it deserves. I hope to come back to it next week.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Data privacy, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Litigation costs, Lord Justice Jackson. Bookmark the permalink.

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