Lieutenant Schrank: You hoodlums don’t own these streets. And I’ve had all the rough-house I can put up with around here. You want to kill each other? Kill each other, but you ain’t gonna do it on my beat. … So that means you’re gonna start makin’ nice with the PRs [Puerto Ricans] from now on. I said nice – GET IT! ‘Cause if you don’t, and I catch any of ya doing any more brawlin’ in my territory, I’m gonna personally beat the living crud out of each and every one of yas and see that you go to the can and rot there.
Riff: Now, protocality calls for a war council between us and the Sharks, to set the whole thing up. So I would personally give the bad news to Bernardo.
Gee-Tar: Where you gonna find Bernardo?
Baby John: It ain’t safe to go into PR territory.
Riff: He’ll be at the dance tonight at the gym.
A-rab: Yeah, but the gym’s neutral territory.
Riff: A-rab. I’m gonna make nice with him! I’m only gonna challenge him.
You will recognise the lines from West Side Story. They are clearly a parable – Schrank is the judge and Riff is preparing for a case management conference with Bernardo, as protocality (otherwise known as the Practice Direction) requires. Can you “make nice” with your opponent and yet challenge him?
In my account of LegalTech, I mentioned a panel led by Laura Kibbe of Epiq Systems whose participants included the UK’s Senior Master Whitaker, US Magistrate Judge Andrew Peck and ediscovery specialist partner David Kessler from Fulbright and Jaworski. I said this of it:
An animated discussion arose during this session about the conflict between co-operation to minimise over-disclosure (on the one hand) and the risk of showing more of your hand than you intend (on the other) with the judges in one corner and the terrier litigator David Kessler of Fulbright & Jaworski in the other. The discussion deserves more space than I can give it here, and I will come back to this.
The principles at issue here apply equally in a US and a UK context. The UK 1999 Civil Procedure Rules were founded expressly on a “cards on the table” approach, and the co-operation duty is both implicit and expressed in the e-disclosure Practice Direction 31B. Rule 26 (f) of The US Federal Rules of Civil Procedure is its parallel. Many lawyers on both sides of the Atlantic find it counter-intuitive (read “treacherous”) to have any co-operative discussions at all. My favourite judicial quotation in this context is the one which says that “co-operation is not all sitting round the camp-fire singing Kumbaya”. Browning Marean of DLA Piper US captures the same spirit with two neat phrases “strategic cooperation” and “aggressive transparency”.
Although I look at this subject with a bias towards the UK rules in this post, much of what arises transcends jurisdictional differences. My premise is that we can only manage electronic disclosure proportionately (meaning, in this context, at a price the clients are willing and able to pay) if we require or persuade the lawyers to try and reach agreement on the scope of disclosure/discovery. Litigation is inherently a contentious process but we need, where possible, to separate the fighting over the facts and issues from the mechanics of disclosure. I include the words “where possible” because it has to be recognised that there are cases where the parties are never going to agree about anything and where the costs seem to them to be irrelevant. It is for the court to manage that, and to punish those who use the disclosure obligations as a weapon.
I do not propose to set out the UK rules relevant to co-operation – apart from the general management principles already referred to, Practice Direction 31B, and in particular paragraphs 8 to 19, make it clear that there is a duty to co-operate. Cases like Digicel v Cable & Wireless, Earles v Barclays Bank, Vector Investments v Williams and Goodale v Ministry of Justice all involved failures to co-operate and it was this failure rather than any technology failure which led to the adverse results in each case (except the last when Master Whitaker got involved at the CMC stage). I will focus instead on the rationale for cooperative discussion in the interests of speedy and cost-effective litigation and on how it might be achieved without leaving any lawyer feeling that he has sold his client down the river.
The specific context at the Epiq panel was the use of technology of the kind which Epiq and others provide. In Epiq’s case, this comes in part as a service known as IQ Review which combines Equivio’s Relevance application with other technology and consultancy, plus Epiq’s review application DocuMatrix. Put as briefly as possible, IQ Review involves lawyer decisions about sample documents selected by the system; their decision-making is then applied across the rest. The output is ranked by degrees of relevance from 100 down to 1 and the user can set a relevance threshold above which documents are considered potentially disclosable. The ranking appears in DocuMatrix (or in the review application of choice) as one of the factors to be used to arrive at the final review set. DocuMatrix includes other functionality (including e-mail threading and the identification of near-duplicates) designed to accelerate the review process.
I will leave on one side, for these purposes, the widespread lawyer view that your duty requires you to eyeball every document and that you fall short in that duty if you entrust any level of decision-making to a software application. It is just not possible to do that anyway, manual review is far from reliable, the capabilities of some of the technology has to be seen to be believed and, as Master Whitaker pointed out at the Epiq session, the proponents of must-read-every-document often fail to distinguish between the culling stage at which broad decisions are made and the subsequent review stage which does indeed require human input. The aim, as he put it in Goodale v Ministry of Justice, is to “produce a manageable corpus for human review – which is of course the most expensive part of the exercise”.
The procedural context in the UK is the Case Management Conference, which must be preceded by the discussions required by the Practice Direction. I use the word “must” here to mean “it makes sense” and not merely because the rules require it, and I am not purporting to lay down general rules as to how much should have been achieved by then of the culling and other processes referred to above. There some things which will always be excluded (system files for example, and custodians and date ranges etc which are unarguably irrelevant) but there are no fixed rules as to how much work must have been done by the time of the pre-CMC discussions – you do whatever you need to do to equip yourself for the debate where you will argue for what you think is right. If you do not know yourself, for example, whether a particular custodian played a role, you cannot present the arguments about him or her. You cannot challenge an opponent’s choice of date range if you do not know what the facts are. Establishing these things requires a mixture of human investigation, e.g. by interview, and the use of technology.
The point which arose during the Epiq panel was more to do with documents which lie at the margins where, for example, you have set a relevance threshold as described above. Perhaps you decided that 70% relevance was appropriate; you will have checked, by sampling, those which lie either side of the relevance threshold, and that you are happy with that threshold. Some of the documents which are thereby excluded may well be potentially relevant under Rule 31.6 CPR; how do you persuade your opponents that you are right about this?
Master Whitaker’s suggestion was that, in the event of a challenge, you invite your opponents to come and have a look at some of the marginal documents. David Kessler saw problems with this and you do not have to look far to find backing for his position in any jurisdiction – you have not done your privilege review at this point, so the idea of letting your opponents wander round documents which you have not necessarily yet seen for yourself does raise issues, particularly in a regulatory investigation. Whether you are self-starting on disclosure (as in the UK) or responding to a request (as in the US) it is the duty alone (so the argument runs) of the lawyer giving disclosure / discovery to decide what documents are disclosable or responsive as appropriate.
All good stuff, but the fact remains that such co-operation has the potential to remove masses of documents from contention before they are put into the ring where all parties must review them at great expense. If there are going to be different views about the relevance or significance of any category of documents, it is better to have that argument before the work is done rather than after it.
In the UK context, in cases to which the Practice Direction 31B applies, there is an obligation to discuss these things. Paragraph 9.3 sets out the things to be discussed. They are:
the tools and techniques (if any) which should be considered to reduce the burden and cost of disclosure of Electronic Documents, including –
(a) limiting disclosure of documents or certain categories of documents to particular date ranges, to particular custodians of documents, or to particular types of documents;
(b) the use of agreed Keyword Searches;
(c) the use of agreed software tools;
(d) the methods to be used to identify duplicate documents;
(e) the use of Data Sampling;
(f) the methods to be used to identify privileged documents and other non-disclosable documents, to redact documents (where redaction is appropriate), and for dealing with privileged or other documents which have been inadvertently disclosed; and
(g) the use of a staged approach to the disclosure of Electronic Documents;
The logic for this is fairly obvious – if I am proposing to make decisions about potentially relevant documents by, for example, using clustering, conceptual search or predictive coding of the kind which underlies Epiq’s IQ Review, I am open to challenge both as to my technology and as to my use of it. The more advanced and sophisticated my proposed application, the less likely it is that my opponent will be familiar with it. Yet these applications have enormous potential for chopping down volumes and doing so more accurately and consistently than any manual equivalent.
One answer, in the UK at least, is simply to say that the rules require it so just get on with it; run your eye down the cases referred to above if you are in doubt as to the downside of failing to co-operate. Another way is to think positively about how you can simultaneously comply with your formal duties, including the duty to co-operate, and use them in a manner which asserts your and your clients’ superiority. It is time to turn to Browning Marean and his two terms “aggressive transparency” and “strategic cooperation” and Riff’s line “I’m gonna make nice with him! I’m only gonna challenge him”.
How can transparency be “aggressive” and co-operation “strategic”? The aggression lies in showing that you are on top of your material – the facts, the documents, the issues, the rules – and will use them if necessary to prevail in front of the court. The co-operation strategy is twin-tracked – if the other side come to your point of view as a result of your overtly co-operative approach then you have “won”. If they do not, then the correspondence, backed by rules-based arguments, ought to prevail in front of the court. The challenge which you lay down is not the fists, knives or guns challenge which Riff has in mind, but an intellectual one.
None of this will make a bad case into a good one. Transparency comes hard if you do in fact have a weakness to conceal. Co-operation, strategic or not, will not do for a client whose aim is simply to try and roll over the other side, whatever the rules say. There is – which is harder to define – a fine line between demands for proper compliance with the Practice Direction (on the one hand) and its use to bully opponents (on the other) where the court must hold the ring and, if necessary, protect the oppressed. It ought to be more satisfying to lawyers to exchange rapier thrusts of informed argument than to punch each other stupid, just as you would expect them to prefer a mixture of brain, technology and new skills to slogging through piles of paper.
I opened with an apparent difference of view expressed by Master Whitaker and by David Kessler as to a specific and narrow point – not cooperation per se but the extent of it in an inherently contentious context. I do not think that they were in fact taking opposite stand-points. Master Whitaker was setting out an ideal which will, in an appropriate case, save time and money by agreement on matters which parties would otherwise fight over. David Kessler was rightly pointing out that this approach will not always be appropriate, and even where it is appropriate, some clients may find it hard to understand why any degree of cooperation is right.
Both of them would say, I think, that clients expect their lawyers to fight the points which matter and to avoid battles whose expense outweighs the likely benefit. The skill lies in knowing which those are, whether you are the lawyer or the judge.
Your strategy before and at the CMC will to some extent be shaped by what you expect from your opponents as well as by what you want to achieve yourself. Riff put it this way:
The Sharks want a piece of this world too. And they’re real down boys. They might ask for blades, zip guns…I say this turf is small, but it’s all we got, huh? Now I want to hold it like we always held it, with skin. But if they say blades, I say blades. If they say guns, I say guns. I say I want just to be the number one – to sail, to hold the sky…OK cats, we rumble.
I am not, of course, suggesting that this is the proper approach to a case management conference, merely accepting that a combination of the history between the disputants, the character of the lawyers and just the way the case has developed may produce this sort of approach. The cure – that is, the creation of an environment in which this is not seen as the right approach, lies with the court. As one of Her Majesty’s judges will doubtless put it “If I catch any of ya doing any more brawlin’ in my territory, I’m gonna personally beat the living crud out of each and every one of ya”.