You might easily get the impression at this time of year that I am spending more time abroad than in the UK. Statistically, that is not (quite) the case, though it is fair to say that I have spent an undue amount of time in the air recently. The events which I attended in Hong Kong and in Florida were not in fact irrelevant to the UK; the primary focus in both places was information governance, which embraces the wider aspects of the management and use of corporate information – not just being ready for electronic discovery / disclosure, but supporting compliance and regulatory obligations and actually extracting value from information instead of merely viewing it as a burden called “data”.
The most obvious example of a UK court showing concern about how companies manage their information comes in the judgment of HHJ Simon Brown QC in Earles v Barclays Bank where he said (I paraphrase) that companies which expect to litigate must be ready to do so and should have the tools and systems to allow this. That judgment is concerned also with knowledge of the rules (it is “incompetence” not to know them) and with judicial concern at runaway costs. I cited it, as I always do, in a three-hour eDisclosure talk which I gave in Leeds between the Hong Kong and Florida trips, and I had the pleasure of sharing a platform with Judge Brown in London the following day. The event was organised by Huron Legal and managing director Nigel Murray facilitated and took part in our discussion in London.
Judge Brown outlined the pending developments in the UK. We already have the eDisclosure Practice Direction 31B of 2010 and the Electronic Documents Questionnaire which forms part of it. The Questionnaire’s purpose is to give a structured and judge-led focus on the exchange of information between parties prior to, during, and after the case management conference. We are moving towards docketed judges, Judge Brown said, and the judge must make business decisions about the management of the case which are proportionate throughout its life. He or she has an interest in doing so, quite apart from the duty of active management given in the 1999 CPR.
The exchange of information by the Questionnaires was only the start. Birmingham, where Judge Brown is a Judge in the Mercantile Court has been host to a pilot of the costs management regime which is due to come into the Rules in 2013; that will compel parties to make budget estimates about all aspects of bringing the case to trial, and electronic disclosure was often one of the biggest heads of cost. Clients have an obvious interest here, not just in keeping costs down but in the transparency and predictability which will come from court-imposed budgets. Parties have a contingent interest in keeping down the costs of opponents, since no-one knows at the CMC stage who will end up with the final bill.
The “menu option” of possible orders devised by Lord Justice Jackson, also due to pass into the rules in 2013, emphasised the need to tailor the task to suit the objective.
Lawyers, and particularly judges, are not necessarily used to this approach, but the only realistic way of keeping costs down was to consider alternative ways of approaching the problem, both as to the scope of disclosure and as to the methods to be used. Judges will now be trained in both budgets and in the tools and techniques of eDisclosure.
All these things are interlinked – the exchange of information, the budgets, the client involvement, the consistency which comes from docketing and the informed selection of appropriate disclosure orders all depend on each other and tended to a common purpose of efficiency and cost reduction. “We are all in this together” Judge Brown said.
Those who want to read more about this may like to refer to two of Judge Brown’s recent articles on costs control in the New Law Journal here and here.
My role was to supplement this high-level summary with some details from the Practice Direction and the proposed new rules. Clients want an early assessment of their case, and that depends on an early assessment of the data as well as of the facts and issues. The key questions are What have we got? Where is it? Who knows about it? With the exchange of questionnaires, you would have the same information from the other side, and this enables a rounded view to be taken not just of prospects but of the scale of the task facing both parties and the judge.
I referred to the West African Gas Pipeline case, stressing that it was not an argument for more disclosure, nor an argument for doing it all yourself but an argument for better project management.
Senior Master Whitaker’s judgment in Goodale v the Ministry of Justice was, I said, a model for pre-emptive case management by a judge who made the parties focus on what really mattered and who reminded them that technology exists to reduce the review volumes. I gave a quick summary of the available technology, from keywords through to predictive coding.
I ended with the suggestion that law firms needed to develop a process – a “this is how we do things here” approach to document-heavy cases, whether for litigation or for regulatory and internal investigations. Law firms were being challenged, I said, by rival business models which included the clients themselves and companies like Huron Legal who have the technology and the skills both to manage whole projects and to offer discrete components of the eDisclosure process, whether to clients or to law firms, with the predictability and transparency which the court now required. This, I said, represented opportunity for those firms who were willing to look at different ways of working.
I ended with a reference to the central message of Richard Susskind’s End of Lawyers?
Lawyers must ask themselves what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality using different and new methods of working.
Nigel Murray took us through some of the things which Huron Legal offers to provide that predictability and transparency, including a range of reports and graphs which can be produced very quickly, which can be updated dynamically as things change, and which provide the kind of information which the courts will increasingly expect to be known to the parties and shared between them and the court to support proportionality arguments.
That capability has recently been upgraded with Huron’s acquisition of Ascertus, which brings additional project management software and skills to Huron in the US as well as in the UK and Europe.
Our venue was the Court Room at St Andrews Church at Holborn Circus, a magnificently-decorated room up a stone spiral staircase. Drinks were served in the crypt of the church, itself worth a visit. More serious commentators would probably ignore the quality of the food which was served, but I am not above saying that it was the best I have ever had such an event. This is not as trivial an observation is it seems – if you give people something to think about and then provide good food and drink in a pleasant room, they tend to stick around and talk to you, asking questions which occurred to them as a result of the presentations and giving you the opportunity to explain in more depth.
One upshot of the session was an invitation to repeat it at a large law firm this week. One cannot ask for more than that.