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Ian Manning sponsored my time on
the original judicial training project when at FoxData and continues to support the Project at Raposa Consulting

Some e-disclosure ideas for judges – and for the Courts Service

28 November 2007

Part 1

There were some messages for judges at our e-disclosure session, and one question from the judges to the Courts Service – what has happened to LiST’s draft Practice Direction and technology questionnaire?

This article is in two parts. This Part 1 is a report of the last week's session aimed at giving judges some ideas about the management of e-Disclosure. Part 2 considers what the messages are for judges, practitioners and the Courts Service.

I spoke in Birmingham last week to a room-full of judges under the title e-Disclosure and the Courts – some ideas for judges. The audience, a mixture of District Judges and Specialist Judges from the Chancery and Mercantile Courts in Bristol, Manchester and Leeds, had been invited by His Honour Judge Simon Brown QC, of the Birmingham Civil Justice Centre. The event was hosted by Mark Surguy of Pinsent Masons.

By coincidence, this theme had been foreshadowed by KPMG Forensic’s recent survey e-Disclosure – The 21st Century Legal Challenge which reported practitioners’ view that the court rules about e-Disclosure are unclear and that judges and masters were ill-equipped to make effective case management decisions.

The rules, the overriding objective and proportionality

The range of relevant topics is wide. At least one fundamental obligation, the Practice Direction to Part 31 of the CPR, is rarely imposed and, in consequence, rarely complied with. The courts’ wide-ranging powers, both those expressly relating to Disclosure and the general powers under the overriding objective and the general management powers are not used as they might be in this context.

The courts cannot decide what is proportionate without some idea of the problems which face lawyers trying to comply with the Practice Direction. Further, a judge will feel uncomfortable making an order for electronic disclosure without knowing what facilities - software and services – exist which would enable the lawyers to comply with such an order.

We looked at the Rules and the Commercial Court Guide in the context of the range of possible sources of documents (itself a widely-defined term) from e-mail servers to spreadsheets to Blackberries, mobile phones and beyond. Relevant factors, I suggested, include not just balancing the time and cost of retrieval against likely value, but considering what sort of case it was – what was over the top for one set of facts might be a neglect of the obvious in another.

Disclosure Statements and Technology Questionnaires

We talked about disclosure statements and who should sign them – someone who knows about the sources. The form itself is open to criticism for ambiguity and for encouraging a box-ticking, as opposed to a thoughtful, answer. The Commercial Court Guide says in terms that the court may question the giver’s qualifications as well as his statement. That power exists anyway, I suggested, under the CPR’s general discretionary powers and was just one example of how courts might exert more control over disclosure.

There are no standard forms of technology questionnaires and agreements for exchange. The judges were puzzled to learn that the draft Practice Direction written by LiST (the Litigation Support Technology Group) submitted to the DCA (as was) in July 2005 after over a year’s consultation is languishing somewhere in the Ministry of Justice. It includes a draft technology questionnaire. This is a simple and obvious way of flushing out disclosure issues at an early stage, and it seems daft that individual courts (or anyone else) should begin their own version when so much skilled work has gone into the LiST version.

It is obviously right that anything which purports to vary, extend or clarify the rules must go through the formal channels, including the Rule Committee. A technology questionnaire does not, or need not, have this status. I am not sure what is worse – that there should be no technology questionnaires or that each court should invent its own.

I say more on this below.

The technology

We looked at data – what is it and what can you do with it? You can sort it, sift it, de-duplicate it and use key words to try and pick out the most relevant. You can exchange it with others.

I showed the judges some documents data in raw form and in a tidied up version in an Excel spreadsheet which could be used both as a list of documents and for exchange. We went through the difference between native format and .tiff or .pdf images. I showed the same document in both forms and explained the pros and cons of each.

I summarised what software and services are actually available to users who find themselves acting in a case which involves any significant proportion of electronic documents. There are many suppliers, from large international consulting firms down to small providers and consultants.

For those who want to keep the work in house, and have or are willing to learn the skills, there is a low-cost desktop package called OutIndex, which costs £250 per year and which can suck data out of message files and document folders and make a rough draft list.

Alternatively, the lawyers can delegate the identification and collection of data. FoxData (the company who sponsored my time on this project) will harvest data from any source, anywhere and deliver it to lawyers' desks quickly and in a form which can be reviewed.

I showed them CaseMap, which can be downloaded from the web very cheaply. Even if its sophisticated analysis functions are ignored, it makes a very good “spreadsheet with bells on” for reviewing what you have got and looking at the documents.

There are other companies, both niche specialists and full-service providers, to whom the whole or any part of the task can be delegated, and a range of software applications to put it in. Trilantic and LDM are the best-known full-service providers.

Lastly, I described the rationale and mechanics of exchanging document information, from initial agreements through to court involvement in approving and enforcing them. I showed how five simple columns in an Excel spreadsheet could be joined to make a merged list. The mechanics may be different in a big specialist system but the principles are the same, as LiST’s documents made clear.

All these things need some outlay and probably some outside help at least to begin with. But any other approach involving any quantity of documents also involves outlay - either manual sifting with printing and copying bills - or being ignored. The latter course is pragmatic and cheap, but hardly consistent with the requirements of Part 31.

Input from the Litigation Support Technology Group – LiST and KPMG

Jonathan Maas of DLA Piper and the LiST Group was on hand to tell the judges about LiST’s work. He described succinctly the intentions behind LiST’s draft Practice Direction on the use of technology and its data exchange protocols, which are already used between the bigger firms and are easily adapted to any situation. One of LiST’s achievements has been to produce documents which can be varied for the circumstances and the size of case, including relatively small ones. It seems a waste of an enormous amount of focused thinking that this work has not been taken up and extended.

Tom Hopkinson of KPMG Forensic spoke about KPMG’s e-Disclosure survey. Whilst the survey’s respondents were from bigger firms who regularly handle Disclosure electronically, the conclusions drawn are applicable in much smaller firms. One of the judges made the point that the cases coming through now are probably the last in which e-mail files are not the dominant document source. Larger firms may be able to absorb the volumes by throwing bodies at the problem. Smaller ones will not have that luxury.

The discussions afterwards

Even within this relatively narrow group, there is a wide range of knowledge and experience derived from the type of cases they see, and it is correspondingly challenging to know where to pitch and how to pace a talk to them. From the wide-ranging discussion afterwards, it became clear that I should in future take the subjects in reverse order – the technical problems and their practical solutions first and the procedural requirements and remedies last. Then, if we run short of time, it is the rules we can take at the canter not the technology, which judges rarely get to see.

The reality is that the two are interlinked in the context of a decision as to what is proportionate. The point is not so much what the rules say – that is clear on their face, although the critical Practice Direction to Part 31 seems to have hidden its face pretty well – but the practical implications of time and cost which are involved in the assessment of proportionality.

Apart from their wish to see more of the technology and their acceptance that some of their powers were under-used, the main message from the judges was that more could be done from above to help the practitioners focus on the problems raised by electronic documents and to appreciate the benefits of doing so.

The need for this focus - the express obligation to discuss issues arising from electronic sources - arises before the first CMC, that is, before a individual judge has the opportunity to apply any pressure or encouragement to a particular case. A technology questionnaire is the obvious way to impose an expectation, and a consistent expectation, across all cases, as to the information needed to make case management decisions. The decision which results may be that e-disclosure is not relevant. A technology questionnaire would make that clear or, as the case may be, would enable an informed approach to be agreed or ordered.

See Part 2 of this article for the messages which arose from the discussions in Birmingham.