It is quite hard to find suitable and accessible venues for what is, essentially, a talking session. The location, and any side attractions, must be interesting enough to be part of the draw, but you do not want them to dominate the occasion to the exclusion of the message you wish to convey.
The Writing Room at Lord’s Cricket Ground is perfect, and made a great setting for an evening at which Robert Lewis of Barclays, Senior Master Whitaker and I talked to an audience invited by Clearwell about eDisclosure developments from the perspectives of judge and client.
I opened with some context. The eDisclosure Practice Direction and Electronic Documents Questionnaire have been in the Rules for just over a year. A recent speech by Lord Justice Jackson drew attention to a pending new Rule 31.5 whose effect would be (amongst other things) to remove the default of standard disclosure and replace it with a “menu option” which would require the judge to consider what disclosure was actually necessary and proportionate for the case. In the same speech, Lord Justice Jackson had criticised the legal profession saying that “relatively few solicitors and even fewer barristers really understand how to undertake eDisclosure in an effective way.” This had been reported in an article headed Top Beak: ignorant lawyers fumble electronic evidence, which is as good a way to putting it as any other.
We had had two relevant cases. In Omni Laboratories Inc v Eden Energy Ltd a party used the pre-trial review, eight weeks before a ten day trial, to make a major specific disclosure application, incurring £47,000 in its own costs (I have written about it here). In Mortgage Agency Services Number Four Limited v Alomo solicitors, the defendant was punished in indemnity costs for running up unnecessary costs for its opponent and exceeding costs estimates. Although not narrowly an eDisclosure case, the principles of case management and of lawyer conduct were increasingly likely to arise in and eDisclosure context (my article about this case is here).
eDisclosure was increasingly seen as an end-use of information governance. Litigants, and in particular those who litigated often, would find the courts increasingly intolerant of excuses which depended on their own poor information management, particularly if the result was a waste of court time and an increase in the costs incurred by other parties. Symantec’s acquisition of our hosts, Clearwell, was symptomatic of this increasing focus on a continuum from document retention and management through to eDisclosure.
I invited Master Whitaker to take us through the purpose and effect of the rules and the practice direction and through the forthcoming new rule. Reduced to the shortest form, his message paralled Lord Justice Jackson’s in its expectation of basic competence in an area which had the potential to generate very significant costs. The new practice direction may have added some specific obligations, but most of it expanded on duties which already existed in the rules and in the former practice direction. It all came back, ultimately, to the overriding objective and to the undeniable duty on the part of lawyers to manage disclosure both competently and proportionately.
The questionnaire, though not compulsory in most cases, provides a structured way for parties to inform first themselves and then their opponents (and ultimately the court) about things which it was a practitioner’s duty to know anyway and which were essential components in the duty of cooperation which the rules required.
Master Whitaker commended the use of the Questionnaire even in cases to which it did not strictly apply. He ended with the suggestion that, whatever the duties of the solicitors, the clients had a role not merely in the management of their own documents but in how their lawyers behaved. The implication (and this is me speaking rather than Master Whitaker) is that lack of preparation, lack of cooperation and the taking of every point costs money, and the clients need to be clear what strategic or tactical benefit follows from their own outlay on this quite apart from the risk of adverse costs orders.
I knew of the in-house eDisclosure resources being built up within Barclays because I had moderated a panel in Munich a few days earlier at which Barclays’ Robert Lewis was a participant. Solicitors, I said, found themselves in competition not only with external providers of software and services but also with their own clients, and Barclays was a model, on a large scale, for this threat.
Bob Lewis took us through the reasons why Barclays had elected to go down this route, most of which came down to control and cost. The first task, however, was to identify for itself what sources it possessed – no easy task given the longevity, as well as the scale, of its electronic data systems. He told of a long-redundant machine which, when powered up, proved to have data on it – a story familiar to data collection experts who have learnt to look beyond merely the systems in current use.
Barclays had undertaken a wide investigation into the tools which the market offered for in-house use and had bought a number of solutions (including Clearwell) which were used as appropriate. The return on investment, expressed as the reduction in external costs, had come within a year, and that included the expense of an in-house team. The savings went further than that: because Barclays generally had administrator rights over its own data, it could monitor what was being done on its behalf, right down to the actual time being spent on document review, for comparison in due course with the timesheets.
I asked him if he felt that this approach scaled down for companies without Barclays’ resources. The starting point is a calculation of what is actually being spent – what were last year’s external costs and what estimate might be made for the coming year? You do not need to be Barclays to make this calculation and to investigate alternative ways of managing eDisclosure to see how the prospective costs compared.
We were followed by Jason Montgomery of Clearwell whose main purpose was to take us through forthcoming changes in both Clearwell’s software and its pricing structure which would allow it to remain competitive in the market. The identified paper-handling and data ingestion as two areas which were changing in response to user demand.
I had to leave at that point, but cricketer David Nash brought a lighter touch to the close of the evening with a talk called Anecdotes and Stories – Cricketing Secrets Revealed. The evening ended with a tour of Lord’s cricket ground.
This was an enjoyable as well as a useful evening. My thanks to Clearwell for inviting me to take part in it and for giving me the pleasure of introducing and moderating their guest speakers.
There are some photographs of the event here.