I wrote here about a helpful presentation, under the auspices of ACEDS and moderated by Vince Neicho of Integreon, about the proposed new disclosure rule. Since then, the date has passed for representations to the working party and it is helpful, perhaps, to gather some of the comments together.

Legal IT Insider has published comments from Vince Neicho and from independent consultant Jonathan Maas of the Maas Consulting Group. The comments from ILTA (the International Legal Technology Association) are published here. I draw on my own submissions for this article as well as a warning from the Law Society.

A better understanding of the basics

All of us stress the need for a better understanding by lawyers and judges of the basics of electronic disclosure both in preparation for the pilot and case by case.

One of the issues here (as I said in my article on Triumph Controls) is of terminology. The term “technology-assisted review” is used vaguely, both in the rules and in various judgments, as if it had a single generalised meaning rather than being a specific example out of a wide range of different technologies. The problem is compounded by the fact that “technology assisted review”, “computer-assisted review” and “predictive coding” are used for much the same thing without differentiation from more everyday analytical tools like email threading, deduplication, and near deduplication. The ILTA comments include a strong section on this.

The term technology-assisted review, with or without its alleged synonyms, should be reserved for:

a system which “harnesses human judgments ….on a smaller set of documents and then extrapolates those judgments to the remaining document collection [Grossman and Cormack, TAR Glossary, 2013].

…and its use (both whether it is to be used and, more importantly, how it is to be used), will continue to be the subject of debate and discussion (although perhaps less so as time goes by – see my recent article on BCA Trading). Email threading and other basic tools should be used by default in most cases.

Judges need to understand the broad differences between these technologies. One of the difficulties here is that different providers offer variants, both in how the technology works and in the language they use to describe it. This is a positive thing so far as a buyer is concerned because it offers choice. It is less helpful to judges who need to understand what all these things do.

Where the work is done and apparent overlaps

Vince Neicho drew attention to a concern among some judges about apparent duplication of work (and therefore costs) between lawyers and external providers of eDisclosure services. Judges complain, it seems, at seeing both an external cost for the mechanics of eDisclosure and the fees of the lawyer responsible for giving it.

While there may well be cases where this is abused, we are talking of two distinct functions here: save for those firms who are equipped themselves with the relevant tools and skills (I wrote about BLP and Eversheds Sutherland here as examples), many firms find it better, cheaper and faster to delegate the mechanics of discovery to an outside provider.

The lawyer, however, remains responsible not just for the tactics and strategy but also for the completeness and accuracy of the disclosure. As I put it in my report of the ACEDS meeting:

Lawyers may not-so-wryly observe that they are simultaneously being reminded of their personal and firm responsibilities and criticised for charging for their work in fulfilling those responsibilities.

As with other things, this is relevant both conceptually at the training stage and at case management conferences and disclosure hearings.

Technical help at hearings

Jonathan Maas argues for a “suitably knowledgeable person to guide the parties” at disclosure hearings. It was one of the complaints by Coulson J in Triumph Controls that he heard from no-one who could explain what had been done and how.

I have argued for a specific reference in the rule or the guidance to the value of having external providers at these hearings if they are the ones who know about it. Only 30 minutes is to be allowed for the hearings; it matters to involve someone who can deal succinctly with the kind of points which Coulson J would have liked to know about.

Spelling out what we mean

The present draft rule might benefit from two elements from previous rules. One relates to native format documents, which the present draft refers to as if it had a common and consistent meaning. In fact, much of the detail about a Word file or an email lies in the file system or in the outer container of a mail system, and one might construe “native format” as including more than is actually sensible (if you think this is far-fetched, I have in the past been asked to advise on what “native format” means in Practice Direction 31B where the meaning was being disputed in proceedings, so it is not a theoretical point).

PD 31B included this provision (at Paragraph 6):

Electronic Documents should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure;

By focusing on the purpose of the expression “native document” rather than any attempted definition, we might bypass some difficulties.

The other provision from the past goes back to the pre-1999 O.24 RSC and disappeared with the introduction of the Civil Procedure Rules. O.24, r.13 provided that no order for production of any document “shall be made under any of the foregoing rules unless the court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for the saving of costs”. This was intended as a kind of saving provision, and a focus (though the word was not used) on what you might call “materiality”. Materiality is presently under discussion in relation to the proposed changes to the Irish discovery rules, and you may care to listen to my interview with Karyn Harty of McCann FitzGerald on that subject.

The availability of court resources

My main concern is something external to the draft rule itself and concerns the resources available to deal with disclosure applications – not just the education point, but the allocation of judicial time. I argued, among other things, for a special list of judges and masters who would be in a position to deal “briskly” (as I put it) with disclosure disputes. It is not wrong to say that lawyers must make their own decisions about the scope of disclosure and about the arguments to be run against opponents and in front of the court; even if court resources were infinite, you can’t be running to the judge over every dispute. Experience shows, however, that the introduction of any new rule brings a long running-in period where judges, as well as lawyers, struggle with matters of interpretation. There is a risk of judges sending a common understanding down the wrong track by an interpretation of things they do not properly understand.

Master Matthews in his otherwise excellent Pyrrho judgment unintentionally fostered the idea that it did not really matter what terminology you used (see my heading TAR / CAR / Whatever in my article on Triumph Controls). Did Coulson J really mean to imply that manual review remained the “gold standard” as he appeared to in Triumph Controls? I think not – his main point was that manual review was what the parties had agreed on – but there is a danger that his words will be used to signify wider court approval of something which is patently nonsense, in cost terms as well as in terms of quality.

We need to ensure that early judgments under the new rule do not embed misleading ideas.

The Law Society and smaller matters

The Law Society’s reaction to the disclosure proposals is reported by Litigation Futures here. The Law Society shares the concerns of the rest of us – about judicial training, court resources, the disclosure of known adverse documents and so on – and also raises the question whether certain types of case and cases below certain levels of value should not be made subject to rules which appear to have been drafted with the Business and Property Court in mind. The Law Society asks whether “full consideration had been given to the value of disclosure in the ‘vast majority of cases’ which did not proceed to trial”.

This is a difficult one. The rule-makers’ firm principle, with which it is hard to argue, is that early and proper attention to disclosure is vital precisely in order to head off trials by bringing matters to assessment promptly because everyone knows where they stand at an early stage. Against that, it is very likely that compliance will incur costs which might be disproportionate to low-value cases.

The working party is going to going to have to get their heads around this before they go before the Rule Committee, which is deliberately designed to represent all types and sizes of litigation and which (in my experience) is a very democratic institution. In theory at least, a district judge from a regional court has a say equal to that of a mighty Chancery judge from London, and the working party would do well to anticipate that.

Conclusion

I have to say that I do not envy the drafters as they begin to absorb all the comments. The comments range from the very broad to the very technical, and it is no fun trying to reduce the technical language of one discipline to the formal constraints of another. The rule must either apply to all cases big and small or involve a threshold of some kind below which certain provisions do not apply if they are to get all this through the Rule Committee.

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