Breaking the dam: barristers moving in to eDisclosure

There are over 3,800 words here, in a detailed report on Legal IQ’s Information Governance and eDisclosure Summit, so bring coffee and a comfortable chair. If you don’t have time for that, the message can be reduced to a few quotations, not all of which appear in the text:

“You have to be specific about what you want to buy” – Drew Macaulay of Consilio

“Sweaty palms”, “blood on the floor” – Judges anticipate costs management

“Look judge, here’s an idea” – Damian Murphy of Enterprise Chambers

“No estimates survive first contact with the data” – Browning Marean of DLA Piper

“Make sure your lawyers [in regulatory investigations] understand eDiscovery” – Allison Stanton of the DoJ

“What tasks are [litigation lawyers] uniquely qualified to do? – Richard Susskind

“We’re all f*****. I’m f*****. You’re f*****. We’re all completely f*****.The whole department is f*****. It’s the biggest cock-up ever. We’re all completely f*****.” – Sir Richard Mottram, Permanent Secretary at the Department of Transport in 2002.

There, that’s set the tone. You may deduce from that much that the rest of this is about costs control, about being on top of the facts and the metrics, about being inventive and able to react to changed circumstances, and about being realistic about the best way of getting the job done. The last quotation is for those who do not accept the need to think differently about the management of eDisclosure / eDiscovery.

ViewfromLancasterThe view from the Lancaster Hotel

On 16-17 May 1943, the remnants of the Dambusters squadron returned to RAF Scampton having destroyed two German dams and damaged a third. My headline came to me without direct reference to that anniversary, though it was presumably derived subconsciously from the memorial events which coincided with Legal IQ’s Information Governance and eDisclosure Summit in London. The dam which I had in mind was the conventional structure of litigation departments and the manner in which electronic disclosure is performed and priced.  I came away from the conference  feeling that, if the dam is not yet broken, it took a severe battering. Standing in for 617 Squadron was an unlikely combination of a professor, an insurer and two barristers.

Given the inadequacy of British history teaching and the insularity of the US, I am going to have to explain this analogy. Operation Chastise is explained here and there is a clip from the 1955 film, The Dam Busters, at the foot of the page. The message is about technology and courage, and about the cracks in the wall which presage collapse.

The Professor

The professor, of course, is Richard Susskind, who has long argued that the litigation process is ripe for disaggregation, that is, for the breaking up of its component parts into units, some of which can be performed faster, more cheaply and to an acceptable level of quality by people and businesses which bear little resemblance to the monolithic structure of firms of solicitors.  Lawyers may play their part, but the only functions which lawyers are uniquely qualified to perform are strategy and tactics together, perhaps, with advocacy. Everything else can be performed by other business models and by people with skills – of analysis and management for example – on which lawyers do not have a monopoly (I put it that way to make it clear, as does Susskind, that lawyers are not disqualified from these things).

The Insurer

The insurer was Matthew Reach, head of legal at Argentum Litigation Services Ltd. Argentum is a provider of litigation funding solutions, whose business model depends on hard calculations about the investment potential of litigation and other disputes.  Litigants may have all sorts of reasons for committing to and continuing with a case, including, perhaps, emotion and wider business considerations which are not directly related to the prospects of success. Their lawyers, however objective and professional, may have (how can we put this tactfully?) a vision slightly clouded by the merits of the traditional approach to disclosure which, by happy chance, involves the deployment of large numbers of the firm’s salaried staff for long periods, directed by the tactical and strategic genius of well-remunerated partners. An insurer suffers from neither of these handicaps, viewing cost, risk and potential benefit in more dispassionate ways.

The Barristers

Barristers do not have teams of associates to deploy on eDisclosure. I do not (obviously) buy the idea that the brightest and most articulate of would-be lawyers choose to be barristers rather than solicitors, but analysis and advocacy are the stock-in-trade of barristers. If you can find someone else to do the brute mechanics of eDisclosure / eDiscovery, then the strategic, tactical and analytical skills, together with the legal knowledge and articulation, can come equally from barristers or solicitors – and barristers are increasingly in the front line at case management conferences. The only things which hold barristers back in this area are traditional ideas of the division of labour and an archaic attitude to fees.

We seem to have lost sight of disclosure as the source of evidence in our focus on the process of preserving, collecting, processing and reviewing the documents in a (largely US-led) drive to ensure that our processes are defensible and proof against challenge. That is expensive, and justice is illusory if no one can afford to seek it. It is also a very heavy-handed way to find the few documents which matter. The technology becomes increasingly good at analysis, or, strictly, as an aid to human analysis – and barristers are trained to analyse.

The Jackson reforms which took effect on 1 April extend existing ideas that the litigation process must be proportionate; we are not required to look under every stone; there are restrictions on the scope of the duty of search; the new rules take us some steps further towards court control of costs. Many lawyers see this as a new set of burdens and, in truth, there is more work to be done at early stages, work which must be paid for by somebody. There are opportunities here, however, to be more inventive and imaginative about both the scope and the method of disclosure, opportunities which are more easily grasped in England and Wales than in the US where distrust and the exploitation of procedural hoops and hurdles erect formidable barriers to change.

A couple of years ago, I did a video webinar with barrister Shantanu Majumdar of Radcliffe Chambers. It was the first outing for my growing view that solicitors were under threat for eDisclosure work from other business models; I identified technology suppliers and providers of managed document review amongst those threats, and I added that the existence of those two components enabled barristers to supplant solicitors, not merely in advising on the scope of disclosure and the rules governing that, but in the management of the process.  What I said apparently stayed with Shantanu and we kept in touch. When asked to suggest speakers for the IQPC eDisclosure Summit, I put forward his name, together with that of Damian Murphy from Enterprise Chambers in Newcastle. They proved significant contributors to an event in which the themes included costs control and the crossover between the legal, procedural, and evidential components of disclosure.

With that as an apparently discursive introduction, I turn to the Summit’s programme, picking out those parts of it which are consistent with the themes outlined above and with the idea that the litigation landscape is about to resemble the valleys below the Mohne and Eder dams 70 years ago.

Regulators: enforcement priorities and expectations

Dean Gonsowski of Recommind moderated the opening panel at which Allison Stanton, Director of eDiscovery at the US Department of Justice, and Keith Foggon, Manager of the Digital Evidence Unit at the Financial Conduct Authority, talked about what companies can expect when a regulator initiates an enquiry into their electronic data.

IQPCREgulatorSanjay Bhandari of E&Y, Keith Foggon, Allison Stanton, Dean Gonsowski of Recommind

Allison Stanton talked about the possibility of building or destroying credibility from day one by the reaction to the regulator’s demands. It was essential, she said, to engage lawyers who understood eDiscovery, either a big firm with the requisite skills and resources or a boutique firm specialising in this (note that – you do not have to be big to have the skills). A request may seem large and unduly burdensome, but the regulator cannot know that, unless you explain, promptly and clearly, what the effect is of compliance with the demands. The regulator won’t be swayed from its duty, but may be willing to adopt a different approach if its objectives can be met by a different approach. If they are looking in the wrong place, said Keith Foggon, ring them up and tell them so.

There is an obvious link between this and the requirements in the Jackson reforms that parties understand and explain their position to opponents and the court. Civil proceedings have a proportionality component and a referee, in the form of the court, which is generally lacking in regulatory interventions. You cannot make use of that if you do not know and understand the implications of the search. As an extension of that, and bringing us back to barristers, you cannot articulate what you do not understand.

FTI Technology: cut costs and increase efficiency with intelligent reuse of disclosure

There is no great mystery in the idea that eDisclosure burdens and expense would be reduced if companies were better at discriminating at source between documents which matter and those which do not. Craig Earnshaw and Nick Athanasi of FTI Technology added another element to this – it costs a lot of money to process data, and still more to review it; whilst you might look on this as pure cost, you might also see it as value added to the document collection – value which is wasted if thrown away when the present case ends. Why not, they asked, retain, recycle and reuse that value by archiving the decisions made about documents?

There is more to this than the information governance strand into which it primarily falls. Repeat litigants get little sympathy from courts if their best answer when challenged is that their systems are a mess. HHJ Simon Brown QC said in Earles v Barclays Bank that:

One expects a major high street Bank in this day and age of electronic records and communication with an in house litigation department to have an efficient and effective information management system in place to provide identification, preservation, collection, processing, review analysis and production of its ESI in the disclosure process in litigation and regulation.

The history preserved in the manner described by FTI in this session can do more than meet this requirement – it may help in the estimate of costs for the next job involving the same data.

Jackson and costs – the insurers’ view

This was the session referred to above. HHJ Simon Brown QC, himself a leading proponent of the principles of costs budgeting, discussed the subject with Matthew Reach from Argentum Litigation Services. In addition to the points summarised above, the chief takeaway is this: it is possible, within obvious limits, to estimate costs, to do so in a way which is capable of adjustment on rational commercial principles (just like any other insurance proposition) and to factor in, as part of the risk assessment, elements which are not directly susceptible to prediction. All litigation brings with it the risk of the late development, the unforeseen evidence and the wild-cards of rogue clients, cunning opponents and the apparently irrational judge. All kinds of insurance include a mixture of certainties and unknowns.

We tend, perhaps, to conflate those things which are measurable – like a unit cost for time or volume – and the rogue elements which defy accurate prediction. The aim is not certainty but the narrowing of the scope for divergences and the development of strategies to cope with and react to changes. “No estimates survive first contact with the data” as Browning Marean of DLA Piper says, but he says that as part of an argument very much in favour of assembling the base statistics in a form which can be updated to reflect variables. No, it is not easy – see an article called Budget control: a sceptic’s view by Richard Harrison of Laytons for an eloquent statement of the difficulties – but whatever one’s view of the rules, there is no arguing with the need for an informed view, whatever its limits, of the likely scale and cost of litigation.

How to prepare for transparency and proportionality of disclosure

I was the moderator for this panel which brought together a solicitor (Mark Surguy of Eversheds) a barrister (Damian Murphy of Enterprise Chambers) a judge (HHJ Simon Brown QC) and a provider of eDisclosure services (Steve Couling of kCura). Our ambition was to look behind what the new rules say and into what the practical implications are for those who have to deal with them.

It is too early to say what reactions we will get from courts when, for example, it becomes necessary to vary a budget estimate. It is clear from Murray & Anor v Neil Dowlman Architecture Ltd that we must distinguish between getting the budget wrong in the first place, which will attract little sympathy, and facing changed circumstances during the course of the litigation.

The new rules narrow the scope for parties to be relieved from sanctions for breach of a rule, order or practice direction. How much scope does this leave the court for leniency in circumstances where error may have a wide range of both causes and effects? Should breach give rise to the guillotine save in exceptional circumstances?

There is room for debate about this both as a theoretical matter and case-by-case. As with the insurance point made above, the ambition must be to narrow the area of risk by early attention to these things covered by the new Rule 31.5. It may not be easy to gather the information necessary to conduct the required discussions, but it is not impossible either. kCura’s Steve Couling emphasised the willingness of providers to play their part in prompt and cost-effective analysis of what data exists, what is potentially relevant, what methods might be used to manage it, and what the range of costs could be.

Tomorrow’s Lawyers – Keynote address by Professor Richard Susskind

If you are not familiar with Richard Susskind’s themes, can I suggest that you buy a copy of Tomorrow’s Lawyers: An Introduction to your Future? In default of that, put his name into the search box on this blog, and you will find several references to those things which have a bearing on eDisclosure. I will pick out only one point made during his as-always interesting speech, and that was his answer to a question from barrister Damian Murphy – barristers get barely a mention in Tomorrow’s Lawyers, Damian said – what of them?

Richard Susskind showed no more optimism for the Bar than for solicitors as the profession was presently constituted. The best prospect for barristers, he said, was to gather together with others (by which he meant providers of non-legal services) to deliver services as legal risk managers – people who could see the potential for things to go wrong. Barristers tended to be talented, articulate people for whom there was potentially a bright future if they were willing to broaden their horizons beyond the traditional role of the bar.

Judicial panel – emerging judicial expectations

I had the pleasure of moderating this panel which comprised Senior Master Whitaker, Mr Justice Frank Clarke of the Supreme Court of Ireland and Justice John Sackar of the Supreme Court of New South Wales. Master Whitaker opened with a survey of the likely impact of the Jackson reforms in practical terms. He stressed the importance both of the pre-CMC discussions and of compliance with the rules generally.

Justice Sackar updated us on Practice Note SC EQ11 in the Equity Court of New South Wales which bars discovery until the evidence is exchanged and allows it only then in exceptional circumstances on an application backed by affidavit. There is no sense, he said, that justice is being denied as a result.

Mr Justice Clarke explained that the Irish rules require definition of categories of documents before discovery was given. He also told us of the eDiscovery Guide which has recently been launched in Ireland. It has no formal status, but is likely to be accepted as a marker for good practice. Good practice may extend back into a company’s readiness for litigation – the point made above about lack of judicial sympathy for those who plead lack of organisation as a ground for relief from sanctions.

We talked about the conflict between perfection and proportionality, about the circumstances in which parties might be sanctioned for eDisclosure / eDiscovery failures and about judicial attitudes to predictive coding. I said the question “What are judicial attitudes to predictive coding?” was a “stupid question”. Justice Sackar characterised it more as “bleeding obvious”. In all three jurisdictions, and whatever the starting level of judicial understanding, it was for the lawyers to articulate the case for and against the use of any particular technology, with a heavy weighting given to costs savings.

The three subjects – perfection, sanctions  and predictive coding – are, of course, related.  How often does a case turn on a document, still less a missing document?  There is a distinction between a proportionate response which might miss documents and a negligent or unprofessional approach which failed to uncover documents; best of all is an approach which identifies sources and argues from an informed position why it is not proportionate to spend time and money on them. The rules in all three jurisdictions depend to some extent on trust between lawyers, which the judges saw as an effective prophylactic against concealment.

eDisclosure budgeting and costs control

The conference ended with parallel sessions whose focus was on complying with the eDisclosure obligations whilst controlling costs. In a sense, the control of costs is now an express obligation of parties and courts – it always has been, but the new rules allow no room for ducking the issue.

Damian Murphy gave us a straight up-and-down survey of the rules as they work (or could work – we don’t know yet) in practice. It would have been better, perhaps, if we had had this session right at the beginning of the conference as a hook on which to hang all the succeeding references to the rules changes. The downside of this would have been that Damian’s Prezi was so much more interesting to look at than all the PowerPoints which followed that they would have paled by comparison – this is not a point about their content but it is hard to create something new and different in PowerPoint.

Some days and several thousand miles later, I cannot distinguish what in my notes was a direct quotation from Damian Murphy and what was my summary. I will give them to you anyway:

Rooting practical, pragmatic imaginative approaches into the framework of the Rules

Being active and imaginative: “Look judge, here’s an idea”

and

“Read the bloody rules” (I am fairly sure that was my translation of what Damian said rather than his own words).

Drew Macaulay of Consilio rounded off the conference with a series of discussions on costs. His session with Matthew Davis of Hogan Lovells was about predicting costs, and should have left the audience clear that, whilst no one suggested that this is easy, it is possible within obvious bounds – and is, in any event, now a requirement. Matt Davis is that rare type, the solicitor who specialises in eDisclosure, and this session successfully merged the inputs of rules and technology. One of the subjects which came up was who should bear the costs of the initial investigation. Lawyers and providers will want to encourage the possibility of winnng the work which follows that first stage, but there is no obvious reason why they should lay out thousands of Pounds of their own money to investigate a potential clients’ commercial problem.

Consilio’s final panel had a different pairing of skills from opposite ends of the client-lawyer field – barrister Shantanu Majumbar talked with Tom Spencer, Senior Counsel, Product Litigation at GlaxoSmithKline. Here was the future of legal services commissioning – a buyer who worked hard on preparing assumptions, on forcing a meaningful comparison between the offerings of law firms and providers, and on getting value without compromising on the quality of the advice received. There were echoes here of what was said by in-house speakers at the recent event in San Diego, and it is Richard Susskind’s “more for less” predictions made flesh.

I leave the last word with Consilio’s Drew Macaulay who, agreeing with what Tom Spencer said about his procurement strategy, observed that “You have to be specific about what you want to buy”. Just so, in eDisclosure as in most other things. It applies as between clients and law firms and as between either of them and the providers of software and services. No one suggests that it is easy, but we need some mathematical rigour alongside the law, the strategy and the tactics. The other skill which matters here, alongside metrics is articulacy – the ability, once informed about the options, to be persuasive in arguing for your preferred course.

Conclusion

The Dambuster analogy with which I started carries us only so far. It featured technology advances (a bomb with backspin bouncing on water), some rough-and-ready remedies (precise height determined by twin spotlights meeting on the water, a home-made plywood sighting device), some very precise metrics (of speed, height and distance), immense courage and heavy casualties. To those below the dams it must have seemed like the end of the world (and was, indeed, just that for many) yet the landscape and the industries below in fact recovered quite quickly. The psychological benefits on the Allied side were significant.

The Jackson reforms will drive change, promote technology, force a focus on metrics and uncover new ways of dealing with problems (the “Look judge, here’s an idea” approach mentioned by Damian Murphy). Courage will be required and there will be casualties. The landscape will change, but not out of all recognition.

The breaking dam in my title is more to do with the players than with the process. A picture of the breakdown of the traditional roles of the traditional players – clients instructing solicitors who instruct counsel and providers – has been amongst my standard slides for over two years, getting its original inspiration from Richard Susskind. It has gradually moved towards fulfilment. What I heard at this conference from two barristers (Shantanu Majumdar and Damian Murphy) and from an active interventionist client (Tom Spencer) shows that the pack is reshuffling and the roles being redistributed as Susskind foretold.

The Jackson reforms are a catalyst for that, but they merely push us a bit faster in a direction in which costs and logic were taking us anyway. This conference took us a good way towards that end.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Consilio, CPR, Discovery, eDiscovery, Electronic disclosure, FTI Technology, KCura, Litigation. Bookmark the permalink.

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