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Guest article – Chris Dale on e-disclosure

Added on the 4th Dec 2007 at 10:20 am
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Some e-disclosure ideas for judges – and for the Courts Service

by Chris Dale*


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 (reported in The Orange Rag) 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. 


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.


The messages for the judges

Judges are an audience which is pivotal to the management of civil litigation.
What are the shortest possible messages to them and to the practitioners
appearing before them? There are five of them, I think:

  1. The Practice Direction to Part 31 is a
    requirement not an option, and the use of the word “should” (as in “the
    parties should… discuss any issues”) does not in reality mean anything
    less than “must”. In any event, the general powers of management entitle
    a judge to give whatever weight he or she thinks appropriate to the
    word.

  2. Some cases clearly warrant electronic
    Disclosure, many others equally clearly do not. The PD requires no more
    than that parties do their homework so that they, and the court if
    necessary, can decide at the outset what is proportionate on an informed
    basis.

  3. The Practice Direction is primarily
    intended as, and should be seen as, a protection not a burden. Coupled
    with the discretionary powers, it is the means by which the court
    protects the small party against the large one, prevents the passing of
    the burden from giver to recipient, and restrains those who would use
    their technical skills to cow an opponent.

  4. Judges are not expected to know it all –
    no-one else does, so why should they? If a party is not able to explain
    any e-disclosure issues arising from their side’s electronic documents,
    that is their failing not the court’s.

  5. There is no shortage of help available. It
    is not necessarily cheap, but its costs, properly managed, should be pro
    rata to the problem and its deployment, volume for volume, should cut
    both time and expense.
     


The message for the Courts Service


What message should we send upwards, to those responsible for policy? One
will do, I think. A draft LiST Practice Direction has existed
for over two years. Its scope is wider than e-disclosure – it concerns the
general use of IT in litigation – but it includes a form of technology
questionnaire and data exchange recommendations. LiST may want to
review it to take account of the developments of the last three years, not
least the Practice Direction to Part 31, but these documents exist and they
were highly thought of when they were drafted.


Consideration of the technology questionnaire and exchange recommendations
should be hived off from the draft Practice Direction and put to a small
group of the judges I met in Birmingham for them to discuss amongst
themselves and with representatives of court users. They should then be
speedily promoted for use in the courts.


No official or statutory imprimatur is needed for this, just some
co-ordination, a few words of encouragement and a mechanism for feedback.
The use of such documents fits within a judge’s
discretionary powers and all we need to do is ensure that we do not have
every court drafting its own version. I can think of at least three members
of my audience who would be glad to get stuck into this.


The upshot could be – and in very short order – a form of technology
questionnaire which would be sent out electronically by the court and
available on court web sites as a compulsory requirement. Formal adoption in
the rules might follow, but is not required. I am certain that a
small group of judges and practitioners, with LiST’s draft and some input
from LiST, could not only produce a workable questionnaire but could be
using it almost immediately.
 


The technology Practice Direction and the role of LiST


The draft Practice Direction on the use of IT in civil proceedings
necessarily needs a more formal approach. LiST deserves better than to be
ignored. One of three courses should be adopted. HMCS should:

  • say that LiST’s approach is right but their mechanism flawed in whatever defined
    respects;

  • or say in terms that no such formal document is needed and
    suggest, or invite views on, an alternative;

  • or it should send the PD on its
    way to the Rule Committee via the normal channels.


LiST's draft Practice Direction should not be left
rotting in a packing case in the MoJ basement. The Rule Committee might be
encouraged to look at the disclosure statement in Form 265 (the list of
documents) as well.
 


The importance for the lawyers


I referred above to cases with ‘a significant proportion of electronic
documents’. What does this mean in real terms? One of the judges said he
gets a document-heavy case – which he defined as say 800 plus documents on
each side – about every 18 months. What skills are worth learning in a firm,
and what investment is worth making for that?


At the least a firm needs to know what it would do when such a case comes
along. The questions to be asked, though, are these: how much prospective
litigation has been abandoned, or settled on disadvantageous terms, because
the lawyers could not handle the documents cost-effectively? What document
sources have been ignored, knowingly or not? Is it really the case that
there are so few cases with many documents or is the reality that no-one is
asking? In any event, the point at issue is not how many cases are
document-heavy but how to identify and handle the ones which are.


It is not just larger commercial cases which involve electronic documents.
Email is replacing both formal and oral contracts at all levels. One of the
points made by the judges was that many small claims e.g. for housing, road
and pavement incidents and the like are against local authorities and other
administrative bodies whose documents are largely electronic. There are
claims to be won – and work to be won – by taking on parties like this on
electronic terms.
 


What should HMCS, judges and practitioners aim to achieve?


The aim is not, in policy terms, to drive up the number of disputes which
are litigated, but to offer businesses and individuals a cost-effective
remedy where disputes arise.


In practice management terms the aim is to know what tools and services
exist which lower the barriers to doing work cost-effectively – the
alternative is doing it not cost-effectively or not doing it at all.


In practice development terms there is work to be won away from other firms
whose approach to electronic documents does not match the clients’ use of
them – and if that has not yet fed through into the disputes being litigated
it must do so from now, five or six years after e-mail became the dominant
means of business communication.


In the courts’ terms, the aim is not rigid compliance with the formal rules
about documents, but proportionate use of the discretionary powers to compel
open discussion about what exists, and informed input into how to handle it.
One of the problems identified at our Birmingham session was that courts
cannot leap from ignoring a rule or Practice Direction to enforcing it
severely. We need a means is of reminding parties of the PD obligations
before
they reach the first CMC.


A technology questionnaire is an obvious immediate starting point for proper
use of the Practice Direction to Part 31. That Practice Direction, the
invisible one which has been in the Rules for over two years, is the key to
reducing the time and expense of litigation.
 


E-filing and other technological advances


There are rumours in the air that the wider question of electronic filing
may be getting back onto the agenda. Pretty well every other public body now
handles its business and its dealings with the public electronically, and it
seems odd that the practical side of the administration of civil justice is
still run much as it was when I qualified as a solicitor in 1980.


However enthusiastic I am for e-filing – and I am – it is essential that
consideration of such technology is decoupled from lawyers’ use of
technology to run their cases. Both will have a profound effect on the way
cases are run, but e-disclosure is a matter for solicitors and their clients
(perhaps with a nudge from the court) to decide on today and be using
tomorrow. E-filing requires budgets, decisions, new technology, project
planning and years of development.


The needs do not stop at e-filing. The word is that at least one new court
centre is well into its planning stage with no mention of the wiring and
other components needed for electronic displays of documents and other
evidence. If this is right, it will be no more fit for 21st Century hearings
than is the RCJ.
 


Conclusion


Let’s play God, or at least his representative in the higher levels of the
Courts Service. Litigation has declined to the extent that London risks
losing work to other jurisdictions, and all but the richest businesses and
individuals have no realistic remedy for their legitimate disputes. There is
a recession coming, or at least an economic downturn, and disputes breed in
recession. The Master of the Rolls has publicly referred to the ‘evils of
delay, inefficiency and excess costs’ in the civil courts.


A group of judges working in the front-line of case management is
deeply committed to tackling these “evils”. A large and respected business
consulting firm has produced a survey showing dissatisfaction amongst court
users. A body of litigation support experts has given much time, skill and
thought to the procedures and documents needed to improve case management,
but their work has lain neglected in a Ministry basement.


The Law Society, who last showed interest in civil litigation on 24 March
2004 (when it hosted a packed meeting on The Impact of IT on the Civil
Courts), is raising its head on the subject on behalf of its members. A Law
Society-sponsored talk on e-disclosure in the Midlands is so over-subscribed
that a second one must be arranged.


What are the quick kills here? What steps have the biggest leverage in the
shortest time with the least expense which meet the criticisms and make use
of the available talents and the current level of interest?


We should first separate out the things which require formality and/or which cost
money from those which can start tomorrow. I don’t mean ditch the former,
but send them down parallel tracks at their own speeds.

  • Track 3 will be those things like e-filing which require long-term planning
    and investment.

  • On Track 2 are matters which require consultation and the involvement of the
    Rule Committee. All that is needed for now is a formal indication that
    submissions would be welcome and would be considered – even that much cannot
    be taken for granted having regard to the fate of LiST’s work. It seems
    unlikely that LiST’s members – the best realistic source of applied thought
    on this subject – will spontaneously offer fresh thinking whilst their last
    efforts have been entirely ignored.

  • Track 1 could start tomorrow. Consideration of a draft technology
    questionnaire needs no input from above or, rather, needs no further input
    because support for the spread of best practice has already been given and
    is implied anyway. LiST’s draft exists. Our Birmingham session showed that
    there is plenty of judicial enthusiasm. All they need (and I do not
    under-estimate this as a problem) is the time to devote to the task and the
    input of some of those who practice before them.


If we can get a room-full of judges to turn out for an e-disclosure training
session and can raise 160 expressions of interest from West Midlands lawyers
and their clients in a talk on e-disclosure, I am sure we can easily find
enough solicitors willing to get involved.


So the immediate steps amount to no more than this: we need public signs
from above that the Master of the Rolls’ lament about the ‘evils of delay,
inefficiency and excess costs’ in the civil courts was no mere hand-wringing
but the opening shots in a campaign to tackle them. The key word here is
“public” – the Courts Service is in fact taking this very seriously but I
suspect that you read it here first.


A directive might go out in some form – a Practice Note, a speech, a podcast,
a YouTube video – anything which encourages judges and parties to focus
early and which encourages LiST, the Law Society and others to re-commit to
the debate.


In the short term, we need no new rules nor any great expense. With a little
public encouragement, we could just get on with it.

Chris Dale qualified as a solicitor in 1980 and has been a legal IT consultant specialising in litigation support since 1993. For details visit www.chrisdalelawyersupport.co.uk


 
 

2 Comments

  1. Anonymous says:

    These articles may be of interest to some in relation to recent moves (December 2007) by the Federal Court of Australia to address similar areas:
    http://www.theaustralian.news.com.au/story/0,25197,22590494-17044,00.html
    http://www.lawyersweekly.com.au/articles/Controlling-the-flow_z74426.htm

  2. Anonymous says:

    Interesting. Three continents seem to be moving in the same direction and, largely, actually sharing their experiences! Great stuff, but I'd like to see a bit more debate from those not normally vocal in these areas.

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