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Don’t face a wasted costs claim. Open your eyes to the power and mechanics of litigation technology, says Chris Dale
At last, a reported case on the scope of a reasonable search for electronic documents and on the duty of parties to co-operate. Mr Justice Morgan handed down his judgment in Digicel (St Lucia) Ltd v Cable & Wireless [2008] EWHC 2522 (Ch) just three weeks after an electronic disclosure seminar hosted by Midland Chancery & Commercial Bar Association and St Philips Chambers in Birmingham. This was part of the e-Disclosure Information Project, aimed to raise awareness amongst barristers of the importance of being alert to electronic disclosure.
As readers may be aware, the Practice Direction to Part 31 of the Civil Procedure Rules (CPR)—updated in October 2005 to take account of developments in electronic disclosure—states that parties are obliged to discuss their sources of electronic documents, to take difficulties or disagreements to the judge, and to co-operate to find a proportionate answer to the problems raised by large volumes of electronic documents. Morgan J’s judgment lucidly explained the obligations and the consequences for the defendant—re-doing disclosure already done and being compelled to co-operate as to that which had not been done—should be enough to persuade litigation practitioners to focus on what is required.
Disseminating information
Electronic disclosure is the provision, by electronic means, of documents which are electronic in origin or which have been made so, eg by scanning. The e-Disclosure Information Project—dedicated to disseminating information about electronic disclosure to judges, suppliers, practitioners and their corporate clients—originated in Birmingham after I was introduced to HHJ Simon Brown QC, a Designated Mercantile Judge at Birmingham Civil Justice Centre (BCJC). Judge Brown’s aim is to make the BCJC, already a modern court with forward-thinking practices and efficient staff, a place in which justice is dispensed quickly and at the lowest possible cost.
That involves close attention to case management, to the overriding objective, and to proportionate solutions to disclosure. It does not mean that orders for e-disclosure are the default but that parties must come to case management conferences (CMCs) equipped to explain what their clients’ electronic sources comprise, how they can help the court find justice and what the costs are
likely to be of collecting, reviewing, and exchanging them. These are the components of proportionality, without which proper management decisions cannot be made. CMCs are increasingly attended by counsel, which is why they need to know something of what is involved.
Technology’s place
This is what impelled Edward Pepperall, a commercial barrister at St Philips Chambers, to invite Judge Brown and me to come and speak to the Midland Chancery & Commercial Bar Association. Judge Brown was quick to suggest that the best way of getting the message across was for suppliers to show what their applications and services can contribute to the task.
I am unapologetic about the role which technology suppliers should play in bringing down the time and cost of litigation. The CPR makes only one reference to technology (the overriding objective includes a token mention of it), and every committee which has considered the subject has excluded those who know most about it, on the (unexpressed) ground that vulgar commerce has no place in matters of court procedure. One of the project’s achievements has been to erode that idea.
Supplier showcase
I assembled a team whose brief was simple—a core theme of how data is passed from stage to stage in the disclosure process, and 20 minutes each to explain how their product or service contributed to that (see box, left).
Risks of ignorance
Judges who carry the case management duty (and it is a duty not a right) have had little opportunity to learn about the problems and the solutions of disclosure. Their experience as barristers does not generally include the mechanics of disclosure; the Practice Direction to Pt 31 seems obscure; they have no training in the subject; and it is an area which is both technical and continually developing. It is not necessary to have deep technical knowledge but it is important to know enough to question parties and to know what is not being said.
Courts are taking seriously their role as active managers of cases, but judges must know what electronic sources exist, what costs are likely to be incurred in retrieving and reviewing them, and what value the upshot will have in enabling a fact-finding judge to find the facts. These are the components of proportionate decision-making.
Getting to grips
There was little room for argument during the seminar about the need to understand the issues. Since then—only a few weeks ago—we have had not only the Digicel judgment but another, Hedrich v Standard Bank London Ltd [2008] EWCA Civ 905, in which a solicitor faced a large wasted costs claim for failing to get on top of electronic disclosure. No doubt disclosure will feature large in Lord Justice Jackson’s review of civil litigation costs, due to begin this month and report in December 2009.
There is also the small matter of a recession and its likely fall-out, in litigation terms, and the increasing risk that litigation work will go to other jurisdictions, or melt away into arbitration, if we do not get to grips with electronic disclosure.
Harnassing technology
Nigel Murray from Trilantic (www.trilantic.co.uk), a supplier of general litigation services, used the Electronic Discovery Reference Model (www.edrm.net) to explain the process from information management through to presentation at trial via the stages involved—identification, collection, processing, review, analysis and production.
Chris Dale is a commentator on electronic disclosure. www.chrisdalelawyersupport.co.uk; www.chrisdale.wordpress.com
At last, a reported case on the scope of a reasonable search for electronic documents and on the duty of parties to co-operate. Mr Justice Morgan handed down his judgment in Digicel (St Lucia) Ltd v Cable & Wireless [2008] EWHC 2522 (Ch) just three weeks after an electronic disclosure seminar hosted by Midland Chancery & Commercial Bar Association and St Philips Chambers in Birmingham. This was part of the e-Disclosure Information Project, aimed to raise awareness amongst barristers of the importance of being alert to electronic disclosure.
As readers may be aware, the Practice Direction to Part 31 of the Civil Procedure Rules (CPR)—updated in October 2005 to take account of developments in electronic disclosure—states that parties are obliged to discuss their sources of electronic documents, to take difficulties or disagreements to the judge, and to co-operate to find a proportionate answer to the problems raised by large volumes of electronic documents. Morgan J’s judgment lucidly explained the obligations and the consequences for the defendant—re-doing disclosure already done and being compelled to co-operate as to that which had not been done—should be enough to persuade litigation practitioners to focus on what is required.
Disseminating information
Electronic disclosure is the provision, by electronic means, of documents which are electronic in origin or which have been made so, eg by scanning. The e-Disclosure Information Project—dedicated to disseminating information about electronic disclosure to judges, suppliers, practitioners and their corporate clients—originated in Birmingham after I was introduced to HHJ Simon Brown QC, a Designated Mercantile Judge at Birmingham Civil Justice Centre (BCJC). Judge Brown’s aim is to make the BCJC, already a modern court with forward-thinking practices and efficient staff, a place in which justice is dispensed quickly and at the lowest possible cost.
That involves close attention to case management, to the overriding objective, and to proportionate solutions to disclosure. It does not mean that orders for e-disclosure are the default but that parties must come to case management conferences (CMCs) equipped to explain what their clients’ electronic sources comprise, how they can help the court find justice and what the costs are
likely to be of collecting, reviewing, and exchanging them. These are the components of proportionality, without which proper management decisions cannot be made. CMCs are increasingly attended by counsel, which is why they need to know something of what is involved.
Technology’s place
This is what impelled Edward Pepperall, a commercial barrister at St Philips Chambers, to invite Judge Brown and me to come and speak to the Midland Chancery & Commercial Bar Association. Judge Brown was quick to suggest that the best way of getting the message across was for suppliers to show what their applications and services can contribute to the task.
I am unapologetic about the role which technology suppliers should play in bringing down the time and cost of litigation. The CPR makes only one reference to technology (the overriding objective includes a token mention of it), and every committee which has considered the subject has excluded those who know most about it, on the (unexpressed) ground that vulgar commerce has no place in matters of court procedure. One of the project’s achievements has been to erode that idea.
Supplier showcase
I assembled a team whose brief was simple—a core theme of how data is passed from stage to stage in the disclosure process, and 20 minutes each to explain how their product or service contributed to that (see box, left).
Risks of ignorance
Judges who carry the case management duty (and it is a duty not a right) have had little opportunity to learn about the problems and the solutions of disclosure. Their experience as barristers does not generally include the mechanics of disclosure; the Practice Direction to Pt 31 seems obscure; they have no training in the subject; and it is an area which is both technical and continually developing. It is not necessary to have deep technical knowledge but it is important to know enough to question parties and to know what is not being said.
Courts are taking seriously their role as active managers of cases, but judges must know what electronic sources exist, what costs are likely to be incurred in retrieving and reviewing them, and what value the upshot will have in enabling a fact-finding judge to find the facts. These are the components of proportionate decision-making.
Getting to grips
There was little room for argument during the seminar about the need to understand the issues. Since then—only a few weeks ago—we have had not only the Digicel judgment but another, Hedrich v Standard Bank London Ltd [2008] EWCA Civ 905, in which a solicitor faced a large wasted costs claim for failing to get on top of electronic disclosure. No doubt disclosure will feature large in Lord Justice Jackson’s review of civil litigation costs, due to begin this month and report in December 2009.
There is also the small matter of a recession and its likely fall-out, in litigation terms, and the increasing risk that litigation work will go to other jurisdictions, or melt away into arbitration, if we do not get to grips with electronic disclosure.
Harnassing technology
Nigel Murray from Trilantic (www.trilantic.co.uk), a supplier of general litigation services, used the Electronic Discovery Reference Model (www.edrm.net) to explain the process from information management through to presentation at trial via the stages involved—identification, collection, processing, review, analysis and production.
Chris Dale is a commentator on electronic disclosure. www.chrisdalelawyersupport.co.uk; www.chrisdale.wordpress.com
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