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