Chris Dale describes new moves that are taking place to make constructive progress on e-disclosure, to encourage the courts to be more involved in managing e-disclosure and to promote understanding of the solutions available.
I have been asked to develop and deliver a training course for judges on the subject of e-disclosure. There are two broad headings – the nuts and bolts of the technology and the proactive use of the CPR to encourage parties to consider whether electronic disclosure may help to reduce the time and expense of litigation. The idea is that closer Case Management at the outset, fortified by an understanding of the available tools and methods, will cut the time and money wasted on otiose disclosure of irrelevant documents.
By coincidence, the week in which we get started also brings a KPMG report which indicates litigator dissatisfaction with present practices and a commitment by the Master of the Rolls to improving them.
The first session takes place in
How did this arise, and why in October 2007, more than a decade after the CPR was launched? What are our aims and what benefits will ensue? There are several strands here and this article serves as an introduction.
A brief history of modern disclosure
My first published article on the use of IT for Discovery appeared in the Litigation Letter of February 1994. It included this sentence:
‘The courts, faced with public criticism of the expense and delay involved in litigation, are seeking to persuade, and possibly even to force, parties to litigation to co-operate’.
I was younger and optimistic then. The ORSA Protocol, the first attempt to standardise Discovery data for exchange, had appeared three months before. The Law Society was shortly to publish a report by Hilary Heilbron QC called ‘Civil Justice on Trial – the Case for Change’ which included recommendations for streamlining Discovery. A Practice Direction of
Then came Lord Woolf's report. Paragraph 12 of his interim report of June 1995 was devoted to ‘what are generally referred to as litigation support systems [which] enable legal advisers to manage and control documents more effectively, using a variety of underlying techniques’. His final report foreshadowed the new definitions of disclosure which duly appeared in the CPR along with the bold statement of intent, the ‘overriding objective’.
I remember rifling through the new Rules when they came out in 1998. Where was all the brave stuff about technology? It had failed to make it into the Rules. This was clearly not oversight, so a decision had been made not to impose – or even mention – any requirements as to electronic sources of information. Most ‘electronic’ files in litigation then were scanned images of paper files, but the growing volumes, and the preponderance of e-mail and other electronic files which existed only in their native formats, could not be ignored.
The Practice Direction to Part 31 CPR
In 2005 appeared a Practice Direction to Part 31 which imposed obligations specifically in relation to electronic documents. The definition of ‘document’ was extended expressly to include electronic documents and it was provided (amongst other things) that ‘parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents’.
The potential implications of this were very significant. The rule-makers' clear intention that electronic sources should be considered at the first CMC was, however, confounded by a combination of three things:
I will not expand on these things here, but it is not surprising that practitioners gave priority to those things the Rules said they ‘must’ do, particularly where the Judge or Master at the CMC showed no greater enthusiasm than the practitioners did for the terra incognita of electronic disclosure.
It became the preserve of larger firms with big cases. Such firms had the skills and had the incentive that there really was no other way of handling very large volumes of documents than by electronic means. disclosure in such cases is going to be expensive however you handle it – a point which always seems to be overlooked – and e-disclosure came to be thought of as an expensive luxury. The articles about it were, on the whole, either by vendors with products to sell or by victims (as they saw it) of disproportionately expensive use of technology by others.
The market was dominated by big suppliers selling sophisticated solutions to early adopters. Smaller solutions scaled to everyday cases made little headway in the absence of any pressure from the courts. E-disclosure was seen as yet another up-front cost, as part of the problem where, properly deployed and managed, it should have been part of the solution. Litigation work fell off.
This is an introductory note, not an encyclopaedia, so I will fast-forward through the arguments, the issues, the problems, the technological solutions and (what is actually more important) the methodologies for handling large quantities of documents, and cut to the training programme now in hand.
In July 2007,
I used the platform to give my view that the problems – the lack of take-up of technology, and the expense of it when it was used – were best addressed by judges at CMCs. The time to set the right course, I said, was as the boat left harbour, and with some knowledge as to the possible directions. I was careful to make it clear that the upshot of a discussion as to electronic sources might be that they could be ignored, but that these decisions could not properly be taken without such discussions and on an informed basis. If the courts were not equipped to ask pertinent questions, they could not easily understand what was being said to them or, just as importantly, what was not being said.
I also put forward the idea that the courts had greater powers than they were using to control the time and expense of disclosure. The overriding objective, I suggested, was just that – it could be used in a proper case to override express provisions. There is nothing very revolutionary about this, but it becomes an exciting weapon when you mesh it with an informed view of the arguments familiar to those who know the technology.
Let us take a simple example. Lawyers consider the review and analysis to be the key stage of disclosure, rather taking for granted the identification and collection stage. You do not necessarily need the same tools – or people – for these stages. A possible outcome of a debate about identification is that swathes of potentially disclosable documents are relegated in importance or dropped altogether. Couple this thought with the PD's suggestion (I put it no higher for the moment) that ‘parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding …. electronic documents’. Add a dash of overriding objective, and you might find it right to limit the scope of standard disclosure, at least for the first round, to the document sources which are most accessible and most likely to yield evidential gold. Parties need the protection of an agreement or an order to derogate from their fixed obligations under Part 31. Judges need to know what the options are.
This gives just a flavour of what I said in
The upshot is that I am to lead a training and discussion session to a number of judges, including Specialist Mercantile Judges from
There are a lot of strands here. The bare technology and the use of the Rules are just the core building blocks. The Birmingham Civil Justice Centre is already a sophisticated and efficient place by virtue equally of its facilities and its people. We could make it a place which litigants choose to go to, retaining business which presently goes down to
There is a wider policy implication. The perception that the
There is a conceptual message to get across. To say that ‘electronic disclosure can be expensive’ does not correctly state the problem. The proper way to express it is that ‘disclosure of very large quantities of electronic documents can be expensive’ – they are electronic anyway, they do exist in large quantities, and those who manage cases must grapple with that. There is no disputing that the electronic disclosure of electronic documents is more cost-effective than printing them all out and typing up a list. The problem to be addressed is not a choice between electronic disclosure or any other method, but is ‘how do we reduce the cost of disclosure by any means’. For that we need to address the formal court process as well as the technology.
Why is the Law Society interested? Its interest goes beyond the practice of law and into the realities of running a practice. One of the big issues which faces firms viz-à-viz each other, and faces the legal profession viz-à-viz other careers, is staff retention. The new entrants into the profession have been brought up on computers and are unlikely to be enticed by the prospect of hours spent leafing through paper. The generation we are losing – the high percentage of women who qualify, practice and become part of a team, and then go off to look after their children – could be retained if the firm can bring them back into the team from home, reviewing documents over the Internet. These are gains and savings which do not appear on a firm's formal accounts, but certainly matter.
Spreading the word
This exercise has grown from its original idea of an afternoon's training on the IT aspects of disclosure. Internally, it has extended into a debate about the Rules. I stress the word ‘debate’ – convinced though I am that there is scope to make better use of the Rules, I am very conscious that there is room for more than one view both as to their meaning and as to the practicality of extending their scope.
As well as speaking to the West Midlands Law Society in December, Judge Brown and I are due to speak at a commercial conference in London in January, where we will talk, mainly to corporates, about the mutual expectations of clients, lawyers and the courts in connection with disclosure. There may be wider education initiatives within both the judiciary and across the profession.
Not the least of the initiatives is a bid to get the support of the suppliers of e-disclosure software and services. The aim is to match the hoped-for increase in judicial involvement in case management with a greater degree of transparency from those whose services will be required as a result. This is not a request that they publish their price-lists, nor is it a suggestion that their prices are too high – every market has a few who do over-charge, but markets have their own way of sorting that out, and it is not my case that the service-providers are too expensive – handling large quantities of documents is never going to be cheap.
What we are hoping for is better targeted expenditure across more cases, a wider range of users spending more judiciously the money which has to be spent anyway to give disclosure properly. That requires a clearer view of the range of options available in the market, and it is the courts, as well as the lawyers and their clients who need that clearer view. I see no downside, and many benefits, for suppliers willing to display their wares more transparently.
FoxData – a sponsor for the initiative
As we kicked all these ideas around in
The opportunity to play a part in all this was extremely exciting, but it had a drawback – it had no client. I have earned my living for 15 years from working in this area, and sole practitioners cannot readily grant themselves sabbaticals to pursue interesting initiatives, however closely related to their work.
At this point, I met
FoxData offered to sponsor the initiative by funding a big chunk of the time I would have to spend on it. FoxData are good sponsors to have, and not just for their ability to make quick decisions. Although what they do overlaps with some of the services offered by other players in the market, they have a defined niche which leaves plenty of room for everyone else – indeed, creates a potential market for others, since the data will need a home more geared to analysis and review for those cases which run on beyond the collection stage. Besides, every case run electronically has at least two parties, each of whom will need a vehicle and technical help.
The aim here, to repeat, is to encourage more active involvement by the courts in managing disclosure whilst simultaneously drawing attention to the wide range of solutions which are available to meet the wide range of scenarios. It is to promote a better-targeted spend on individual cases and on more cases.
It is a side-effect, but not merely an incidental side-effect, that
Happy coincidence brings two external influencers to bear on this subject this week. The first is KPMG Forensic, who have brought out the results of a survey (click here for more on this) which apparently shows dissatisfaction with the courts' case management role, specifically in relation to e-disclosure. They argue for more training for judges and for the establishment of a body to pool resources and ideas on the subject. Well, the former is in hand, and the latter deserves discussion, notably with LiST (the Litigation Support Technology Group www.listgroup.org) who already occupy – usefully and neutrally - much of this ground. Senior Master Whitaker is Honorary President of LiST, adding weight to LiST’s already established credentials for such a role.
The other big gun turned on this subject in the past few days is that of the Master of the Rolls. Sir Anthony Clark is reported this week in The Times as referring to the ‘evils of delay, inefficiency and excess costs’ in the civil courts. ‘The civil justice system’ he said ‘is an essential public service’ which must operate ‘efficiently and fairly’.
I have the impression that the Birmingham Civil Justice Centre already has these evils well in its sights. On 21 November we will turn both barrels on to the ‘delay, inefficiency and excess costs’ of disclosure.
Chris Dale qualified as a solicitor in 1980 and has been engaged in litigation support consultancy, software development and data handling since 1993. His web site at www.chrisdalelawyersupport.co.uk includes comment on the work of LiST and other aspects of e-disclosure. His telephone number is 01865 463033 and his e-mail address is firstname.lastname@example.org