2090 people registered to watch a video webinar on e-disclosure and privilege last week. That is, apparently, the highest number for any of the successful LexisNexis series of such webinars and presumably reflects the growing interest in electronic disclosure.
The moderator was Professor Dominic Regan. Barrister Shantanu Majumdar of Radcliffe Chambers spoke on privilege and my subject was the e-disclosure Practice Direction and Electronic Documents Questionnaire which took effect on 1 October 2010.
I have always been happy to leave the subject of privilege to the lawyers – my interest is in the use of technology which delivers electronic documents to the experts for review and which makes it easy for them to identify and flag privileged documents in the same way that they indicate relevance or the allocation to an issue. Between you and me, I generally use the privilege sessions at conferences to nip out for a smoke and a chat with whoever is passing.
You cannot do that when you are wired into a studio in front of four video cameras, and I am glad I listened as Shantanu took us through legal advice privilege and litigation privilege. My recollection of my training is that we are given some broad instruction of the “you will know a privileged document when you see one” kind. Even in those innocent days long before Three Rivers District Council v The Bank of England and the cases which followed it, the subject deserved more precision.
Was the “sole or dominant purpose” of the communication the giving or obtaining of legal advice? Whose “dominant purpose” are we talking about? How does one distinguish between a mere possibility of litigation and litigation which is “contemplated” or “reasonably in prospect”? What factors distinguish the different circumstances in which privilege may be waived. What is the scope of “without prejudice” privilege and how do you waive it? This was an informative, non-stuffy survey and Shantanu Majumdar joins the list of those I would like to invite to take part in future conferences.
My headings were the Practice Direction and Questionnaire themselves, how to avoid a starring role in the next e-disclosure case, and the new skills required to win clients, cases and settlements. The cases show some obvious risks, but my emphasis was on the benefits rather than the risks and on the potential within the rules to focus disclosure on what matters rather than on purported compliance with the detail of the rules. The rules matter, but the ability to influence judicial discretion matters much more. Judges have spent their professional lives acquiring new knowledge quickly; they will do the same with arguments about the scope of disclosure and the use of technology if the lawyers can present clear information, complete with costs estimates showing why one route is better than another. Master Whitaker’s judgment in Goodale v Ministry of Justice is a model to follow here.
Watching the webinar afterwards, I see that I managed to invert the entire sense of one of my central points. The context was the discussions which are required by the Practice Direction and the value of agreeing your intentions with your opponents before the work is done rather than arguing about it at great expense afterwards. If I intend to use near-duplicate technology and predictive coding, I said, you are entitled to know this in advance and to discuss how this affects both the scope of my disclosure and the costs. Similarly, if you intend to deploy a large team of lawyers to do the exercise manually, I am entitled to know about it partly (I meant to say) because it is “almost bound to be the least efficient way possible of doing it”, and because no one knows at that point who will be picking up the bill at the end. The video shows that I said “least inefficient way”, the exact opposite of what I meant. The sense, I hope, is clear – there are different ways of tackling the e-disclosure problem with different risks, benefits and costs. Case management (which is really costs management) requires informed discussion as to the methods to be used, discussion which extends to the court in its case management role.
These video webinars are an excellent way of delivering information to large audiences. If I prefer a live audience, it is because I like to see the whites of their eyes and because one is more tied in to the words on the slides when someone else is operating them for an unseen audience. With that in mind, an arrangement which puts the slides down and to the speaker’s left whilst the camera is up and slightly to his right is less than helpful. That niggling point apart, this was a pleasure to do, not least because of Dominic Regan’s relaxed and informed moderation.