Electronic Disclosure: Meeting the Challenge

December 2, 2008

Electronic Disclosure: Meeting the Challenge was the title of a seminar presented by SCL on 20 October which was hosted by Barlow Lyde & Gilbert. The Chairman was barrister Clive Freedman and the speakers were Janet Lambert, a partner in Barlows’ Reinsurance and International Risk Team, Christine Gabitass, Technology in Practice Analyst at Latham & Watkins, and me.

My advertised subjects were the fact that judges are becoming more familiar with the problems which arise in relation to e-disclosure, sanctions for failure to co-operate, the pending Technology Questionnaire, and US and Australian parallels.

The first part, the growing familiarity of UK judges with electronic disclosure, is a well-worn subject for anyone who reads my blog (http://chrisdale.wordpress.com/). I identified the problem as comprising the inadequate application of the rules, lack of understanding of the technical issues and the available solutions, lack of reporting of interlocutory applications, and a fear, which I said was misplaced, of the US example. Anything I said on the first three of those points was overtaken by the delivery, three days later, of the judgment in Digicel v Cable & Wireless [2008] EWHC 2522 (Ch). If you come across an opponent, or indeed a judge, who seems unacquainted with their respective obligations under the Practice Direction to Part 31 CPR, Morgan J’s judgment will put them right.
My prepared notes on the rules included the line ‘Have they even discussed what they have got?’ That, as you will see from the judgment, is the nub of the defendants’ failure in Digicel. As to sanctions – who needs more by way of sanctions than to have to redo disclosure, which was in part the effect of the judgment? In speaking of agreements on key words, I suggested that the aim is not just to co-operate (as the rules expressly require) but to involve, one might almost say implicate, everyone relevant – clients, opponents and the judge if necessary – in the decision. It usually attracts a sneer from someone in the audience when I say that. I don’t think it will again.

I ended with a summary of some of the things I had heard in Washington (see my blog posting: Leadership in litigation), really trying to bring the level of discussion above rules and technology and up to questions of leadership. The place where leadership is most needed, I said, is within the corporate clients whose boards had a duty to be ready, to the extent proportionate to the risk, to face electronic disclosure.

Janet Lambert went next, identifying with great prescience that the location of electronic documents, the scope of search, reasonableness and proportionality, and the disclosure statement were the problem areas – an agenda, almost, for the yet-to-be-delivered Digicel judgment.

She traced the development of the various Rules, Guides and Protocols which govern civil proceedings, and focused on non-compliance with the Practice Direction to Part 31 CPR as the chief difficulty. Parties were afraid to go there, she said, nervous equally of too much disclosure and too little. She identified specifically a reluctance by parties to disclose to the other side what key words they used to refine their disclosure set. The adversarial instinct remained and a cultural change was needed. It does not overstate the importance of the judgment of Morgan J to say that that change is now on its way.

Janet said that documents which have not been managed well in house will inevitably be expensive to handle in the context of litigation. Key documents were kept alongside irrelevant, privileged and personal ones. In-house policies were needed, taking account of local privacy laws and blocking statutes as well as more basic factors. It was not always easy; one company may have taken over another, for example, and not know where the data lies

She turned to the methodology of review. Many firms were still reviewing hard copy document which existed electronically, without a clear understanding of the value which search technology can bring when applied to the metadata. Problems like attachments and e-mail threads were extremely difficult to handle with paper bundles.

Janet summarised those parts of the Commercial Court Long Trials Recommendations which applied to disclosure – that the common law discovery obligation should be retained, that standard disclosure should be the starting point and that the judge makes the final decision on a ‘rigorous’ basis. There were costs sanctions if large quantities of irrelevant documents were disclosed. Costs-shifting was possible if ‘over-generous’ disclosure was demanded.

Janet concluded that we do not need more rules and guidelines. We were, she said, hoping that cases would develop and be published on interlocutory matters. Mr Justice Morgan must have been listening.

Christine Gabitass began by drawing a distinction between problems which were computable and those which were not – the second time I had heard Alan Turing invoked in a speech in three days. The exercise of disclosing documents is not computable. Computers may take much of the burden, but the task involves the exercise of judgment.

Planning is required and judgment-calls must be made based on a number of criteria. The plan must take into account the certainty that things will not go to plan. You need to set and meet time and budget constraints, with someone appointed to monitor progress and sign off stages. Necessary control-mechanisms include, for example, checking with your suppliers that a proposed deadline was in fact achievable before agreeing to it.

The target was not a perfect result but the best result possible within the time and budget constraints. Scope-creep (which she described as when a design for a pumpkin comes in as a design for a coach-and-four) was inevitable without early and frequent monitoring. You can adjust a plan – but only if you have one.

Christine then took us through the stages of a typical review project, ending with a GANTT chart. Costs, she said, were almost impossible to estimate at the outset, which is not a reason for not trying. Estimated variables can be updated as you go along – a small variable can have a dramatic effect on costs if the estimate proves false.

A useful set of slides set out what had to be done step-by-step. I will pick two of the many helpful bullet points – ‘price is not the only criterion’ and ‘if the assumptions are wrong, at what stage will you find out?’

I have since found myself quoting Christine’s emphasis on the importance of exercising judgment. A good grasp of the rules and of the technology is important, but the first are easily looked up and the second can be hired at reasonable rates proportionate to the task. The exercise of judgment requires both, but it also requires a system and a process and a methodology without which the rules and the technology are useless.

My thanks to the SCL for the invitation to speak, to Clive Freedman for his excellent organisation and chairmanship, and to Barlow Lyde & Gilbert for their hospitality, which extended to some good eating and drinking after the event.

You can hear the seminar as a series of MP3 files here. CPD is available online too for those listening to the seminar and responding to the set questions.