Electronic Disclosure Law & Practice by Michael Wheater and Charles Raffin. Oxford University Press | £175

I don’t think I betray any secrets by saying that I was asked to review the outline, the table of contents and the structure of this book as long ago as May 2014. I disclaimed personal knowledge of the authors, Michael Wheater and Charles Raffin, but said that the fact that they were barristers at Hardwicke was “a reference in itself”.

We were then in the middle of the compliance frenzy caused by the Court of Appeal’s daft decision in the Mitchell case in November 2013 ( Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537). Mitchell was not a disclosure case but its elevation of nitpicking, rules-centric point-scoring over the practical and proportionate dispensing of justice gave rise to a series of pointless judgments about disclosure, shifting lawyers’ attention away from getting the job done and towards picking holes in their opponents’ disclosure, and in satellite litigation about alleged defects in procedure.

The Court of Appeal came more or less to its senses with Denton  (Denton & Ors v TH White Ltd & Ors [2014] EWCA Civ 906), rightly emphasising that breach of the rules was not a licence for opportunistic point-taking, and restoring the idea that parties should cooperate and that courts should look at all the circumstances of the case.

The Mitchell period did at least force lawyers to take the occasional look at the White Book – it was at about that time that I inadvertently came up with the motto RTFR (“Read the F* Rules”), losing patience during filming of a video about disclosure at the cases whose outcome would have been different if someone had given some thought to what the rules actually require. More recent cases have focused less on strict compliance with rules (without undermining their importance) and more on how the disclosure task was done.

We have seen criticisms like “…the use of vast armies without any sufficient focus…” in RBS Rights Issue Litigation [2015] EWHC 3433 (Ch), a judicial description of a disclosure process as “cumbersome, and inadequate” in The Dorchester Group Ltd (t/a the Dorchester Collection) v Kier Construction Ltd [2015] EWHC 3051 (TCC), and other judicial admonitions about project management – I wrote about this in my recent article on the Triumph Controls case.

This need to consider both the rules and the practice was foreshadowed in the notes which I wrote for the prospective publishers of Wheater and Raffin’s book:

The emphasis must be on practical things – the recital of rules and a broad reference to “cooperation in eDisclosure” must include a focus on the interweaving of legal, technical and practical things in circumstances where the game is won or lost (in procedural, strategic and tactical terms) on articulation. That in turn depends on early assimilation of facts about sources and how they tie in with the obligations to discuss and agree a proportionate course.

That much was already in the publisher’s summary, and Wheater and Raffin did not need me to urge that approach. The only thing obviously missing from the outline, I said, was anything about cross-border discovery.

I set this out because it indicates my ideas as to what mattered in this then yet-to-be-published book. One might be punctilious to a fault about the rules and foul up the practice; the best eDisclosure project manager might slip up by a failure to comply with the rules or with the terms of an order or agreement (again, see my Triumph Controls article). A useful book must cover both. The court tends to treat mistakes and omissions as cumulative – you might be forgiven for one failure, but not if it is part of a series of them. There is a lot to get wrong, and the aim of a book must be to help minimise the room for error.

It must also be useful to a wide range of practitioners handling cases of all types and sizes. In one of my Mitchell articles, I said

The problem, and one which Mitchell exacerbates (deliberately, so far as one can tell), is that there now appears no gap between damaging incompetence and the kind of oversight and inadvertence which any of us might commit, nor is any relevant distinction drawn between very big cases in specialist London courts and small ones in provincial county courts.

…and in another

you may encourage the court’s generosity if you have complied as best you can, and in a way which is consistent with proportionality. That includes duties of openness and discussion with opponents.

All that preamble effectively defines what I would hope for from Wheater and Raffin’s book. Does it measure up?

The answer is an unequivocal “Yes”. It meets a need and fills a gap. The most skilled of practitioners – the ones who do this every day, who know the rules and who have or hire skilled expertise either in house or externally – will find much that is useful; those new to subject will find it invaluable. It is also well-structured and well-indexed, so that those who need something in a hurry can find it. As you would expect from OUP, the production is to the highest standard.

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The authors begin, as I would, by asking the question “What is disclosure for?” Yes, it is to do with the rules of litigation or some analogous process but also this:

On a slightly more complex level, eDisclosure is the use of planning and technology to manage and streamline the disclosure process to reduce the volumes of documents that are to be reviewed manually by the legal team and permit the disclosure exercise to be carried out reasonably and at proportionate cost.

This straight-out-of-the-gate focus on “planning and technology” is followed immediately by a reminder that data is now electronic and electronic data is everywhere, created by all of us through multiple devices in multiple formats and distributed across multiple locations, not all of which are known to us, let alone under our control in any sense. How do we reconcile this size and diversity with the requirements of proportionality – not just court-led requirements of proportionality but the practical need to get to the data which matters at a cost which makes sense? The book’s introduction very quickly gets to the subject of good information management which “is not just about managing litigation or regulatory risk; it is primarily about efficient processes and good business sense”.

Turn a page or two and we are on to cases, with mention of three of my favourites – Nichia v Argos, Digicel v Cable & Wireless and Shah v HSBC Private Bank which, between them, set out principles which matter – the vice of over-disclosure, the obligation to discuss and cooperate, and the difference between the old test of “relevance” and the “carefully chosen wording of the rules” which (per Lewison LJ in Shah) should make us look properly at the scope of disclosure in Rule 31.6. Between them, they remind us that “the carefully-chosen wording of the rules” matters – or RTFR as I would put it less elegantly.

Wheater and Raffin go on to set out some “core principles of effective eDisclosure”. This sets the stage for what follows. An early section deals with the nature and types of electronically-stored information all the way through to “the cloud and social media”.
We are taken through the rules covering, among other things, a reasonable search, the first case management conference, and the Electronic Documents Questionnaire.

There is a section on the basics of identification, control, preservation, collection, processing and review. We are told what objections may be raised, and what are the types of applications which can be brought to the court which relate to disclosure. The costs implications and sanctions for non-compliance are covered.

My wish to see a section on cross-border issues in disclosure is amply met along with a whole section devoted to eDisclosure in domestic and international arbitration. A section called Banking Secrecy, Data Privacy and Data Protection draws attention to the restrictions which these elements impose on disclosure, with a foreshadowing of the further implications of the General Data Protection Regulation. There is a link between that and the good information management which the authors mentioned in opening – the less you keep, and the more you comply with the Data Protection Act and GDPR requirement to dispose of private data on the expiry of the purpose for which it was collected, then the less of a problem you will have in complying with eDisclosure obligations.

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The popular view of barristers (which many barristers share) is that their role is limited to advice on the law and procedure and to the advocacy which takes the case through the courts. They do not, on the whole, get their hands dirty with the mechanics of disclosure (and nor have most of those who become judges). Wheater and Raffin plunge in, however; the long third section of their book takes us through the process, consistent with the opening commitment to “the use of planning and technology to manage and streamline the disclosure process”. I observe that their technical advice came from Jonathan Maas of The Maas Consulting Group, whose long experience spans both the technology and the rules side of eDisclosure.

The sections on identification, on preservation, on collection, on processing and filtering and the rest bridge the gap between the technical people who live and breathe this stuff and the courts and the lawyers  who need to understand enough to match the technical processes to the legal ones. Lawyers and technicians have one thing in common – they understand their respective specialities, using terminology which seems expressly designed to exclude non-experts; in this context, however, each of them needs to know enough about the discipline of the other to make sensible and proportionate decisions. This book will help enormously with that.

There is a section dedicated to predictive coding, the name they give to “processes which involve some form of machine learning to extrapolate the decisions of a human reviewer to a broader dataset”. I will tiptoe away from the terminological point, perhaps returning to it in a separate post. Whatever you call it (I would call that “technology-assisted review” or TAR, which the authors use for a wider set of analytic tools), Wheater and Raffin make a good job of explaining what this technology is, and whether it is defensible or not, with sections on its pros and cons, and references to cases and learned papers from home and abroad.

Of all the quotations they give on this subject, perhaps the most useful is one by Fullam J in the Irish case Irish Bank Resolution v Quinn. He said:

“If one were to assume that TAR will only be equally as effective, but no more effective, than a manual review, the fact remains that using TAR will still allow for a more expeditious and economical discovery process”.

One might couple that with US Magistrate Judge Andrew Peck’s often-reiterated point that it is wrong to hold TAR to a higher standard than manual review.

The authors’ scrupulous balancing act on all this, respecting the doubts of the doubters while reporting on the gradual acceptance of the technology, is probably proper. If I was left muttering “Yes, but what do you really think?”, that probably means they got the balance right. After all, recent weeks have given us a judgment (Triumph Controls again) which suggests that at least one senior judge still thinks that manual review is some sort of gold standard. You can’t choose your judge (though one of my suggestions about the new disclosure rule is that, to begin with at least, we have a specialist list of judges and masters who can ensure that disclosure applications are heard by people who understand it – we could kill the rule-makers’ ambitions with one or two ill-considered paragraphs in a judgment).

The technology has moved on since the text was written, and the cautious mentions of seed sets and training time have been overtaken by developments in what is called Active Learning or Continuous Active Learning. That is why one must actually see this technology and form a view as to its role in one’s own cases.

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We have a new disclosure rule in the works. Its authors are presently absorbing points arising from consultation and some redrafting will doubtless follow before its pilot commences. Only when the pilot has run its course and its conclusions been absorbed will the practice direction (the initial form of what will become the rule) become applicable everywhere.

Although the new rule will bring new obligations, they are on the whole extensions of existing ones. You have to articulate your proposals for scope, method and cost, agree where you can, and seek judicial approval of your proposals from a judge whose powers (duties, indeed) require hands-on management but whose knowledge may require topping up. That in turn requires an understanding not merely of the rules but also of the available technology and the processes which must be gone through in a manner which is defensible and proportionate. You can only articulate what you know and understand; you will not get much judicial time to get your point across.

Future editions of this book will reflect the new rules and, no doubt, changes in technology and in practice. I do not recommend, however, that you wait until then before getting to grips with it all. Most of what is covered in this book will either persist in its present form or be a sound basis for the changes, whether incremental or sudden, which will come. You have a lot of cases to get through before then.

We have warnings from the courts – those words quoted above about “vast armies without a sufficient focus…” and a “cumbersome and inadequate” disclosure process – are not words which any firm wants to see in a judgment with their names at the top. Triumph Controls shows us that the very best firms can come unstuck. Wheater and Raffin have plenty to offer on the practical side of getting it right, however good you are already at electronic disclosure.

Perhaps the main point is this: the “very best firms” are not co-extensive with “the biggest firms”. You do not have to be a big firm to handle large-scale disclosure exercises – the mechanics can be delegated or outsourced, leaving the lawyers controlling the tactics and strategy. This book will be an invaluable guide to those who have that aspiration, whatever their size.

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