Predictions 2016: Chris Dale

December 15, 2015

{i}Conduct and costs{/i}

In 2015, we saw parties punished in costs for their conduct. As Fraser J said in {GBM Minerals Engineering Consultants v GM Minerals Holdings:}, ‘if the parties insist on litigation of attrition, they may find… the court approaching the matter by not awarding costs to either party’. We will see more of this as courts decide that parties had given disclosure ‘without properly taking stock as to whether the process had overtaken the purpose and / or whether a more confined process should be adopted…’ as the judge put it in {RBS Rights Issue Litigation:}.

{i}Narrowing the scope of disclosure{/i}

The question in the wartime poster ‘Is your journey really necessary?’ will increasingly be asked of disclosure. We are not merely allowed but positively required to consider whether the disclosure of certain categories of documents is consistent with the overriding objective.

Costs orders are the weapon here as lawyers discover what Lord Justice Jackson meant when he required that costs must be not just reasonably incurred but also proportionate. That will require a serious rethink as to what expense is ‘reasonably incurred’, and that must involve looking more closely at how much is being disclosed.

{i}Technology use will increase{/i}

Now that Artificial Intelligence is here and in use in the more sophisticated firms, predictive coding and other forms of technology-assisted review will appear old hat and lawyers may accordingly start looking at them instead of muttering about ‘black boxes’. They will find that analytics and visualisation tools enable them to get their arms round the scope of disclosure in time to give business advice to clients, not just advice on proceeding with the procedures; they will also enable them to articulate arguments to opponents and the courts as to why documents should or should not be disclosed.

{i}More pre-emptive management of disclosure{/i}

Flanders and Swann had a gag about MOT tests for cars ‘…ten years… brought it down to five years… thinking of bringing it down to three years’, with the punchline ‘there’s even been some talk of having them tested before they leave the factories’. Expect to see more judges rolling up their sleeves at CMCs to test disclosure arguments before they leave the factories, by directing the method as well as the scope and cost of disclosure – that is, after all, what is required of them under Jackson’s r 31.5. Clients will come to value lawyers who can do this properly, heading off unnecessary costs at the pass.

{i}There’s gold in them thar social media hills{/i}

We will see a growing realisation that it is necessary to at least consider searching social media and other unconventional sources of data for evidence which confirms or contradicts what is said in pleadings, affidavits and oral evidence. I said this last year and we are beginning to see it happening.

The defendant in {Cirencester Friendly Society v Parkin:} ‘… seemed incapable of keeping off the Internet and showing the true nature of his activities through social media’. I get gasps of amazement from even well-informed eDiscovery audiences when I show what Google Maps tracks about us by default and what metadata is stored by an iPhone camera. eDiscovery review tools are getting much better at managing all this material, but you do of course have to remember to ask for it, where that is proportionate, both from your own client and the other side. Expect this to achieve greater prominence in 2016, probably in a case report where the lawyers get egg on their faces for not even thinking about it. More organisations will start to develop policies to anticipate such problems.

{i}Law firms lose business because of cyber risk{/i}

Law firms have been described as ‘the soft under-belly of cyber security risk’, and we can expect to see firms losing confidential data in 2016. This affects client decisions about who handles their discovery and, perhaps even more than costs, is pushing clients towards taking more of the work inhouse and / or entering into managed services arrangements with providers who are equipped to handle the risk.

{i}Expect worse performance from the courts{/i}

Despite the removal of Chris Grayling as Lord Chancellor and the replacement of his hopelessly useless Permanent Secretary, expect continued decline in the service offered by the Ministry of Justice. ‘The cuts’, they will whine, but much of the fault lies in their incompetence, indifference, and inability to manage. Teams of expensive lawyers sit idle in court corridors because some pen-pusher is too lazy to organise lists properly; points which could be dealt with briskly by a video case management conference instead wait months for a hearing date because overpaid paper-shufflers will spurn simple solutions like Skype in favour of unwieldy procurement exercises for grand, pie-in-the-sky solutions.

Expect this to get worse, not least because of the increasing number of good judges who are retiring early, fed up with HMCTS incompetence, time-consuming litigants in person, and procedural backlogs.

Do not hope for this to improve now that the government has promised millions of IT investment. On past form, much of that will prove illusory or be reallocated; the rest will disappear in badly-planned projects, changed specifications, and a failure to involve the users – the judges and lawyers – in the process. The civil servants, however, will continue to draw fat salaries and pensions for their leisurely working weeks.

{i}The effect of privacy and data protection{/i}

US courts and regulators may at last start taking notice of the effect of EU restrictions on personally identifiable information. After years of ignoring it, they will have read about the Schrems decision in the New York Times and will therefore know that there is a problem, even if they don’t really understand it (there are some honourable exceptions, I should add). It might at last be useful (it has long been possible, at least in theory) to advance arguments in US courts which persuade them to limit the scope of discovery or otherwise mitigate the conflict between US demands and EU restrictions.

Whether or not that happens, US corporations will begin to take the subject more seriously, partly through the fear of punishment, but perhaps also because of the effect on staff relations, customer relations and public perception. That’s work for lawyers and providers with appropriate facilities, skills and staff, particularly in the UK but also in mainland Europe. It is also something which search technology can help solve.

{i}Information Governance{/i}

We might even see some organisations concluding that if they kept less garbage, and knew where to find the rest, they might reduce their eDiscovery bills. They might even get value out of what they keep. There is much more to information governance than this, but it is a good place to start if you want to reduce eDiscovery costs.

{b}Chris Dale of the eDisclosure Information Project Ltd:{/b}