The New Law journal is running a series of roundtable discussions on various aspects of litigation and dispute resolution. I have my eye on the events in this series because I am due to take part in one shortly. Quite apart from the quality of the participants, the NLJ produces attractive, readable reports of what was said.
A recent one addressed the subject of costs and case management (see NLJ Roundtable Costs and Costs Management). The significance of e-disclosure as part of this subject was evidenced by the presence of Greg Wildisen, International Managing Director of Epiq Systems, who has shown a consistent interest in the context of rules, procedure and costs as well as in the technology and services which Epiq provides.
Also present was Andy Ellis of costs specialists Ellis Grant. I feel that I knew him quite well although we have never actually met – we follow each other on Twitter and his office is at the opposite end of the High Street from my late father’s office in Wanstead where I started my articles of clerkship several decades ago.
Others present included solicitor David Green of Edwin Coe, Mark Hill QC of Pump Court Chambers and Jeremy Hill of LexisNexis
E-disclosure seems to have dominated the discussion. The panel focused on two aspects of particular importance. One is encapsulated in the comment by Mark Hill: “Save for a few judicial techno-nerds, nobody has the slightest idea what e-disclosure is all about. The early warnings have been largely ignored”. [My original report on this merely passed this quotation on without comment. I meant to add my view that the sentence about “a few judicial techno-nerds” both under-estimates the number of judges who know very well that electronic documents must be dealt with properly, and perpetuates the false idea that a deep knowledge of technology is required to manage them. Judges need only to have a broad idea of the technology solutions and to require parties to show that they have examined the costs and other implications of using them].
The other point will be familiar, if only because by chance, I dictated a reference to it a few minutes ago in my report of a Singapore judgment. The sentence which catches my eye is “For litigators there is a natural propensity to leave “no stone unturned” when engaging in discovery and it is this mindset that the panel agreed needed challenging.”. Paragraph 46 of Digicel v Cable & Wireless and its cross-reference to paragraphs 44-52 of Nichia v Argos deserve this exposure.
There was discussion about keyword searches and other, more sophisticated, search techniques, and about the costs management trial being piloted in the Birmingham which is covered in a panel on page v of the report. The advantage of assembling a cross-disciplinary panel like this is that all these inter-related subjects come up at once – you cannot sensibly discuss technology without also bringing in the management of costs and the broad subject of lawyer and judge education.