With practitioners singing the praises of search technology and using past cases as guides, confidence is growing in e-disclosure
Mark Surguy partner, Eversheds
Damian Murphy barrister, Enterprise Chambers
Paul Epstein QC barrister, Cloisters Chambers
How important is the ruling of Mr Justice Birss in Re Atrium Training Services Ltd for future e-disclosure exercises?
Mark Surguy, partner, Eversheds: Among the matters on which the judge ruled were two questions. The first was whether an order to give standard disclosure is not complied with where relevant documents in the control of the disclosing party are not included in a party’s list of documents. The second was whether an order for standard disclosure is not complied with where the description of a document in a list of documents is insufficient to enable the document to be identified.
The judge held that it is not enough to establish a breach to show that documents within a party’s control are missing from a list. It would have to be shown that a reasonable search did not take place. Deficiencies will have to be so significant that one must conclude a reasonable search did not take place.
The judge also held that scanned paper documents uploaded to an online repository should be considered to be electronic documents with the result that Practice Direction 31B applies. That means that a list of documents in a tabular form that identified a date, document type, author/sender and recipient and item number is sufficient, even if there are blank entries reflecting the absence of original information about a document.
This ruling is important in that it illustrates that courts are unlikely to be sympathetic to technical points being taken about the sufficiency of another party’s disclosure in heavyweight cases provided that a bona fide, proportionate and reasonable search has been carried out – particularly where the object of invoking non-compliance is the striking out of a significant case against you (here, a £50m case involving alleged fraud).
The case underscores the imperative for lawyers to collaborate with all parties over how disclosure is going to be approached and to seek agreement over a methodology.
It is also a salutary reminder of the difficulties that can be caused by leaving disclosure processes too late – in this case, delivering hundreds of boxes for scanning only three weeks before the deadline, when the legal review could not start until the scanning was done.
Damian Murphy, barrister, Enterprise Chambers: My one-word answer is: fairly. Since the court showed tolerance of the kind of errors that can happen in an e-disclosure exercise, Re Atrium could be seen as providing the counterbalance to the infamous 2012 case, West African Gas Pipeline Company Ltd v Willbros Global Holdings Inc (Wapco), when the court seemed to show far less tolerance. As such, Re Atrium has jumped to a prominent position in the e-disclosure case law canon.
However, because one e-disclosure exercise is likely to be very different from another, it would be prudent to limit the attention paid to the detailed analysis within any one case, unless it truly can be said that precedent has been set. Neither case sets any real precedent; both show judges wrestling with a fairly novel area of procedural law and taking a slightly different approach in applying the Civil Procedure Rules to the very different facts before them.
Paul Epstein QC, barrister, Cloisters Chambers: Even though the applications that Henderson J was considering were not concerned with the use in English courts of predictive coding (sometimes known as technology assisted review), it is significant that he explicitly endorsed the parties’ use of predictive coding for a document-heavy case. The judicial view of the need for co-operation in e-disclosure is seen in passages criticising some of the hostile positions taken in the defendants’ correspondence. It is a sign of the times.
Just as significantly, the judge’s decision to grant the extension of time for the claimants to make disclosure illustrates judicial understanding where difficult and heavy e-disclosure exercises are involved.
What has been the most significant recent development in the e-disclosure arena?
Surguy: So-called predictive coding technology is the trend of the moment. While this will displace a large number of people employed in litigation practices, it should help restore the ability of the legal profession to deliver cost-effective solutions to clients.
The ability to search terabytes of data automatically is a major advancement for litigation and investigations assignments. Data can be transformed into evidence very quickly, resulting in more informed decision-making and improved access to justice.
Another welcome development is the gradual disappearance of the charge per gigabyte for processing and hosting data. This model is unsustainable in the current environment and significantly inhibits the take-up of the technology.
Murphy: If I am allowed only one, I would say the Jackson reforms. Although there are limits to the applicability of certain provisions such as cost-management orders, in the disclosure sphere there are no limitations. Every practitioner now needs a firmer understanding of e-disclosure to gain the greatest tactical advantage for his or her client.
If I can squeeze in another, then I would say technology assisted review. By saving costs and maintaining a reasonable search benchmark, it has the potential to transform e-disclosure planning.
Epstein: The Wapco case from 2012 has struck fear into the legal community. The judge found that Wapco had failed properly to de-duplicate documents, had carried out inconsistent redactions and had failed properly to gather documents and review them. Costs were ordered against it. If Wapco, advised by legacy Herbert Smith, can make such errors, so can anyone. The result has been that parties and their lawyers scrupulously consider their agreements with their e-disclosure providers, and their obligations to co-operate with the other parties and their solicitors.
Who is leading the e-disclosure drive – solicitors, barristers, the judiciary or the client? How can stakeholders work together to improve the use and acceptance of e-disclosure?
Surguy: Solicitors traditionally have to manage the collection and review of documents for disclosure. They understand the challenges presented by large volumes of electronic documents. Counsel have been slower to respond, perhaps because presentation of the documents is their focus and the use of electronic trial software (a facet of e-disclosure) is under-developed.
Having said that, a handful of barristers have set up specialist e-disclosure practices and an increasing number are conducting conversations with instructing solicitors about search-and-review technology. Some clients – especially those in the regulated sectors or ones that litigate regularly – are installing e-disclosure technology in-house and conducting search, processing and review routines before external solicitors are retained. The judiciary are perhaps the furthest behind the curve, although collaborations are taking place between British and US judges on how electronic documents should be handled in court.
Conferences and seminars at which barristers, judges, clients and solicitors share best practice are an invaluable way of improving standards. An appreciation by clients of just how expensive badly handled e-disclosure exercises can be should incentivise greater collaboration at the start of a case, as to how the exercise is going to be designed and implemented.
Murphy: The judiciary. The Civil Procedure Rules are a creature of the judiciary and the rules now place e-disclosure prominently within the procedural framework for all multi-track cases. My impression is that with Lord Justice Jackson at the helm, the drive for e-disclosure will grow stronger, because without control over disclosure –and most disclosure is now e-disclosure – there will be little control over costs in multi-track litigation.
Stakeholders can be inventive in developing new business models and charging structures, but they can also play to their traditional strengths. E-disclosure, with its rapidly changing technology and processes, is a niche field. Solicitors have forever briefed barristers for niche expertise. Briefing barristers on e-disclosure planning and implementation is a cost-effective way of using traditional relationships to provide a modern and effective service for clients. Similarly, barristers can also use the traditional ‘referral’ to another barrister to achieve the same goal where they can see that specific e-disclosure skills are needed.
Epstein: There is a difference between e-disclosure exercises where most or all documents are in hard copy in their native form and those where most or all are electronic. In the former, solicitors are likely to drive e-disclosure, perhaps with some involvement from tech-savvy barristers. In the latter, although often the exercise will be driven in the same way, it can equally be driven by clients with advanced policies on electronically stored information. Greater awareness of e-disclosure will drive acceptance. That will be through increased use of Practice Direction 31B, published court judgments and education.
Where does e-disclosure’s real benefit lie? Is it in cost or speed and efficiency?
Surguy: The real benefit is evident by examining what happens if e-disclosure software, search technologies and database disciplines are not used in cases involving large volumes of electronic documents. Printing and reading mountains of paper is massively expensive, takes too long, is unwieldy and requires armies of lawyers and paralegals, who will inevitably miss important documents on account of tiredness and human fallibility.
Properly handling electronic evidence means you can prove a case far more cogently. That means settling cases that should be settled and getting on with the trial of the issues that are truly contentious.
With data-processing speed increasing all the time and search technology becoming so powerful, e-disclosure should be seen as a necessary part of a practitioner’s skillset, without which he is not competent to practise.
Murphy: I don’t think there is a benefit per se in e-disclosure, any more than there is a benefit per se in disclosure. Benefits from e-disclosure have to be earned and the starting point is careful planning and implementation, combined with an early understanding of the nature and volume of the electronic documents. Anticipatory investment is needed, but where the yield may be decisive tactical advantage, cost-effective, speedy and efficient e-disclosure should be a central part of any litigation strategy.
Epstein: The real benefit of e-disclosure lies in large disclosure exercises. In these cases, the numbers of documents that require disclosure is reduced. Where coding is used, the time taken, compared with manual reviewing, is reduced. The price of coding may be that not all relevant documents are disclosed – there is no total recall, to use the jargon – but that is perhaps inevitable. Overall, the cost of e-disclosure in document-heavy cases can be very significant. However, that is a result of the large numbers of documents involved, rather than a criticism of the cost of e-disclosure.