Early in my career, I learned that the most important person in my working life was not the client, important as the client clearly was, nor the partner for whom I worked, although it was certainly important to have a good working relationship with him (in my experience it was always “him” in those days). No, the most important person in the office was the managing clerk.

I suspect I am right in saying that there is no such animal today. Today, with its all graduate entry into the profession and the obsession with paper qualifications often to the detriment of any real understanding of how to make things happen, law firms are full of paralegals, contract lawyers, trainees (not articled clerks) and other apparently brilliantly qualified individuals.

In the dim and distant past, there was a small and highly skilled group of people who really knew the nuts and bolts of the litigation process. They were not partners, nor solicitors, indeed in many cases, they had no formal qualifications at all but they were a mine of detailed information about the rules and how to interpret them. Most importantly in my case was their friendship with all and sundry “down at the Courts” as a result of which they appeared capable of arranging for summonses I had failed to have issued, to be issued without fuss and within the relevant time limits even if the resulting document was covered in rather more red stamps than I had hoped!

Many are the times I recall hearing those comforting words “Don’t worry, Charles, I’ll pop down and see Fred and he’ll sort it out!” Where are those arbiters of common sense today?

Of course, I was trained in the days when the very idea of cooperation was anathema to any self respecting City litigation lawyer. I admit to enjoying the game of snakes and ladders which was how I regarded the deliberate use of the rules to frustrate an opponent. But gradually, things changed and the era of laying your cards on the table dawned.

Or did it? More accurately, I should ask, has it dawned yet? And if not, why not? After all, cooperation does not mean collaboration, does it?!

Most people accept, (at least I hope I am right about this), that litigation takes too long and is too expensive. The part of the process which tends to engage lawyers in the most time, and therefore to cost their clients the greater part of the fees for the whole case, is the handling and disclosure of documents. Not surprisingly, therefore, attempts have been made across common law jurisdictions to limit the number of documents to be disclosed (and our own Jackson reforms pencilled in for April 2013 are on the point) and to seek methods by which the collection, analysis and review of documents may be speeded up so as to reduce the overall costs of the litigation.

Some of you will have heard of the Sedona Conference Cooperation Proclamation. Briefly the proclamation issued in 2009 starts with the following words:

“The costs associated with adversarial conduct in pre-trial discovery have become a serious burden to the American judicial system. This burden rises significantly in discovery of electronically stored information (“ESI”). In addition to rising monetary costs, courts have seen escalating motion practice, overreaching, obstruction, and extensive, but unproductive discovery disputes—in some cases precluding adjudication on the merits altogether—when parties treat the discovery process in an adversarial manner [sic]. Neither law nor logic compels these outcomes.”

His Honour Judge David J. Waxse is a United States Magistrate Judge in the District of Kansas. He has written an article in the Richmond Journal of Law & Technology entitled “Cooperation—What is it and why do it?” [PDF - 18pp]Honestly, I cannot see such an article being written by an English or Scottish judge. It is a remarkable discussion of what cooperation means both from a scientific point of view drawing on research which shows why human beings cooperate with one another and from the litigation context via Sedona, the ABA rules, the Model Rules of Professional Conduct and the Federal Rules of Civil Procedure.

I urge you to read the whole article which is highly instructive. Frankly we could all do with a dose of its wholesome common sense. As a taster, Judge Waxse says that most people learn about cooperation at school and considers that some would benefit from the list for elementary school teachers as follows:

SHARE when you have something that others would like to have.
TAKE TURNS when there is something that nobody wants to do, or when more than one person wants to do the same thing.
COMPROMISE when you have a serious conflict.
DO YOUR PART the very best that you possibly can. This will inspire others to do the same.
SHOW APPRECIATION to people for what they contribute.
ENCOURAGE PEOPLE to do their best.
MAKE PEOPLE FEEL NEEDED. Working together is a lot more fun that way.
DON’T ISOLATE OR EXCLUDE ANYONE. Everybody has something valuable to offer, and nobody likes being left out.

With judges like this and heavyweight reports such as the Rand report on Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery [PDF - 169pp] already referred to by me in my previous post [Globalisation, 8th May, 2012] it is difficult not to feel optimistic that, in the end, the world of litigation will become a saner, more efficient and cost effective place.

It is not that new, of course, dating from 756 AD when the Caliph of Damascus set up his court in Cordoba and constructed the mosque on the site of an earlier Roman Temple of Janus which had itself been converted into a church by, of all people, the Visigoths. In 1236 the city was captured by Ferdinand 111 as part of the Reconquista (culminating in the expulsion of the Moors from mainland Spain in 1492). Ferdinand was responsible for the cathedral we see today, which is effectively a Christian cathedral housing an Islamic mosque on the site of a Roman temple converted into a Visigoth church!

It is often forgotten that there have been periods of our history when different religions and cultures have co-existed. One such place was Cordoba where there was a significant toleration of different cultures giving rise to an explosion of artistic and intellectual predominance. Other examples include the influence of Ancient Greece which extended as far East as India and west to Spain and encompassed much of northern Africa. No one pretends that all this globalisation was achieved smoothly or that the results were uniformly benevolent but nonetheless globalisation has been with us a long time and we are seeing further extensions in our own time.

“It is a small world.” I am uncertain where the comment first appeared but a case to be heard in the Supreme Court in May could “herald(s) an era of more foreign lawyers coming here to then be able to enforce the law of any country.”

The quotation is by Nick Moser, partner at Taylor Wessing, in an article entitled “Unsettling Settlements” [The Lawyer 23rd April, 2012] .  Moser is acting for the trustee of Bernard L Madoff Investment Securities and an intervener in the case of New Cap Reinsurance Corp & Rubin & Lan v Eurofinance SA & Anor and AE Grant & Ors, or Rubin for short.

For present purposes, I understand that the UK Supreme Court is to be asked to decide whether the liquidator of insolvent Australian reinsurance company New Cap Re can enforce in England an insolvency judgment for the payment of money obtained in an Australian court.

The case is being hotly defended, but if the earlier Court of Appeal ruling in Rubin is held to be right, the authors say that it will turn London into “disputes central.” If an application in Australia is enforceable in London, it is argued that the law will have caught up with the modern commercial world where people can move money at the touch of a button.

It has always been one of my tenets that English law is the most flexible in the world and, that being so, it can and should continue to be the preferred global law of commerce. A decision by the Supreme Court to confirm the Court of Appeal in Rubin will certainly make for greater efficiency in cross border insolvency cases, but should also encourage other litigation to be started in London which will be seen as the forum of choice for resolving international trading disputes.

Good for lawyers practising English law and for vendors of technology used to deal with the ever increasing amount of electronic documents which will inevitably result.

It is all the more important therefore that the courts in this country continue to grapple with and ultimately succeed in driving down the costs of litigation here. In that context I am pleased to refer to a lengthy piece of research conducted by the RAND Institute for Civil Justice, a research institute within RAND Law, Business, and Regulation, a division of the RAND Corporation: Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery [PDF - 169pp].

 This is not the place to comment extensively on the more than 100 pages of the report save to say that it covers widely the issue of where the money goes in relation to litigation and inevitably deals with the costs of disclosure.

I would like to highlight only two small aspects of the report:

1. On page 67 at note 18 there is a reference to the report by “Lacey, Tanner and Moeskops” (two Eversheds lawyers and our own James Moeskops) on how predictive coding was used in a specific case which cost “a fraction” of human review.
2. More seriously, the report recommends, amongst other things, that there should be Transjurisdictional Authority for Preservation.

In a nutshell the objective would be to have some form of cross border guidelines or rules so that litigants will know what the rules relating to preservation actually are wherever they are to litigate.

The report is excellent but long. Read it at your leisure but for my purposes, and taken together with the potential for “global” litigation in London if Rubin is right, it is just another straw in the wind of globalisation.

A brighter future:  Master Whitaker suggests a framework for improving the practice & reducing the costs of e-discovery, 30 March 2012.

Steven Whitaker is well known as an advocate of the proper use of technology in relation to the ever increasing volume of ESI which lawyers have to confront in modern litigation and his article encapsulates the approach which increasingly the courts will impose on litigants in common law jurisdictions.

The views expressed are not new. Indeed, the Master addressed the plenary session of the Singapore Conference on Electronic Disclosure in August 2011 in these terms. The views are, of course, even older than that as his references to cases such as Earles v Barclays Bank Plc [2009] EWHC 2500, Goodale v Ministry of Justice [2009] EWHC B41 (QB), Nichia Corp v Argos Ltd [2007] EWCA Civ 741 at [47], Jacobs LJ, and Digicel (St Lucia) Limited v Cable & Wireless Plc [2008] EWHC 2522 (Ch) make clear.

Now I will be among the first to recoil from the idea of information governance. The whole concept sounds worthy but dull. But, and this is the important point, without a policy on information governance, it is well nigh impossible for a litigant to provide instructions and data to its lawyers in a managed and organised fashion without causing them to drown in the morass of disorganised bumph (or its electronic equivalent, e-bumph?!).

The Master’s article also suggests that there is another important reason why the courts should question the parties rigorously about the data they seek to disclose. Over the years, many disputes have come to be resolved under English law and in common law jurisdictions at least partly because of the splendid flexibility of English law and its prevalence in large parts of the commercial world, but the Master warns that with the rise of civil law jurisdictions such as the EU and China, any perceived or actual over-reliance on a process (discovery/disclosure) which is expensive and disorganised is likely to lead to less litigation under English law and its procedural rules if those rules are perceived to be unnecessarily demanding and expensive.

Lord Woolf did away with the train of enquiry discovery, but the Master fears that this is coming back because of the challenges which disclosure of ESI presents and thinks that the courts should do something about it. To quote his conclusion:

“However, the effective management of ESI from creation to maintenance and disposal, combined with effective court intervention, could stem this tide. The adoption of rigorous information governance strategies by businesses will largely eliminate it in the long run.”

His article suggests five areas where steps can be taken: information governance strategy, court scrutiny, embracing technology, proportionality and cooperative, collaborative and transparent disclosure.

I suggest that this article should be compulsory reading for lawyers and their clients, especially those who are or are likely to be serial litigators.

After all, it is Information Governance, stupid!

“Divorced, beheaded, died,

Divorced, beheaded, survived.”

This is not the time or the place to go into details! It is sufficient to say that after many years on the throne, married to Catherine of Aragon, the King gradually became obsessed with the need to father a male heir, which, together with the connivance of Thomas Cromwell, set in train the momentous events involving the break with Rome and a new State religion, the effects of which we are still living with today.

Can we say the same about predictive coding?

After some considerable time during which disclosure was mainly handled by teams of lawyers handling ever increasing volumes of paper, we moved on to a general acceptance that some form of technology would have to be used if the exercise was not to take far too long and become ruinously expensive. The debate now ranges over the various techniques which can be employed and one of those, as readers of this blog will know all too well, is computer assisted review or predictive coding.

“Considered, deferred, denied”?

In recent months, the debate in the US has revolved around a number of cases where the courts either have or have been asked to endorse predictive coding as a method of identifying likely relevant documents from among a much greater number.

The case which is currently the most in the news is Da Silva Moore etc. In February of this year Judge Peck endorsed the use of predictive coding as a tool to review electronic discovery. The Plaintiffs appealed and also asked that Judge Peck recuse himself for a range of reasons, prominent amongst which was that he had appeared at a number of conferences sponsored by the defendants’ electronic discovery vendors, Recommind, talking about the merits of predictive coding.

On April 26th, having “considered” the appeal, Judge Andrew L Carter “deferred” the issue of recusal and “denied” the order sought by the defendants.

A neat article on the decision appears on the website of the Association of Certified E-Discovery Specialists [District judge upholds Peck on predictive coding, but says recusal of magistrate judge may endanger ruling, 27th April, 2012]

It is a good summary of the position and at the end of the article there is a link to the actual judgment delivered by Judge Carter.

“Considered, deferred, denied.” Whatever next? We must wait and see.

However, I feel sure that we have not heard the last of Judge Peck and the case of Da Silva nor, I suspect, of predictive coding.

In the first of a broadcast mini-series of interviews by Chris Dale of the e-Disclosure Information Project, James Moeskops, MD of Millnet’s Legal Services division talks about the present state of play. In short, where is the technique justified, what are the processes employed and where is all this leading?

The broadcast is 12 minutes long - you can listen to it on the Millnet iPadio channel - 
ipadio.com/channels/Millnet

Alternatively, you can read a PDF transcript of the interview here

The judge ordered the alleged attacker to not delete or otherwise erase any information on his Facebook account.

This sort of order is not new and Gallagher is only the latest in a line of cases which have been reported in my previous musings going as far back as McMillen v. Hummingbird Speedway, Inc., No. 113-2010 CD (C.P. Jefferson, Sept. 9, 2010), through Zimmerman v. Weise Markets, Inc., 2011 Pa. Dist. & Cnty. Dec. LEXIS 187 (Pa. County Ct. May 19, 2011) and on to Largent v. Reed, Case No. 2009-1823 (C.P. Franklin Nov. 8, 2011).

Lawyers in this jurisdiction should by now be well aware that what you post on social media sites is disclosable.

To avoid the sucker punch, Stern suggests four rules of thumb:

• Do not accept “friend” invitations from people you do not know.
• Adjust the privacy settings on your profiles to private.
• Do not post anything to your profiles discussing your lawsuit and/or related injuries.
• Reconsider posting pictures, especially those that will be used to dispute your injuries or tarnish your image.

Simple really! Or as simple as not trying to destroy evidence by deleting emails, but of course, that never happens does it?

sucker punch
n
1.a sudden surprise punch, esp from behind
2.a sudden unexpected defeat or setback

definition from thefreedictionary.com

In the “not quite so new” corner, The Times reports (April 25th 2012) that a BP engineer has been charged with allegedly trying to destroy evidence about the true scale of the Deepwater Horizon oil spill.

The interestingly named Kurt Mix is alleged to have deleted at least 300 messages including texts exchanged with a supervisor on the subject of the unsuccessful attempt by BP to cap the Macondo well using a technique known as “top kill.”

The US Department of Justice says that Kurt Mix’s texts show that BP knew that the well was leaking more oil into the Gulf of Mexico than it admitted and the engineer now faces two charges of obstruction of justice.

One text is said to include the message: “Too much flow rate-over 15000.”

Not yet quite on the scale of the Enron debacle but significant in any event. The wider message is not new: don’t assume that by pressing the delete button you can get rid of the material. I suppose the other message lawyers may want to give to their clients is that they should discourage employees from putting sensitive discussions into writing.

While that may not be a new message either, there is a very new development in the Virginia State Court. In the case of Global Aerospace Inc v Landow Aviation LP et al an order approving the use of predictive coding was entered on April 23rd 2012.

The details of the case are apparently complex but Ralph Losey’s report in his e-Discovery Team® blog heralds this as the “second ever order approving predictive coding.” [Second Ever Order Entered Approving Predictive Coding, 24th April, 2012 ]

Judge James H Chamblin’s order may be found by following the link above.

It must be a success, to judge from the piece published in Law Technology News earlier this month written by one of his students Lindsay Korotkin:  “Academia Meets the Real World.”  [PDF version here]

It seems pretty obvious that law students need to learn about processes which will assist them in dealing with their future clients and pieces of litigation they encounter. Patrick has set up a LinkedIn group Cardozo E-Discovery and encourages lawyers and potential employers to join in. I have applied!

However, while it seems to happen “over there” it does not appear to happen “over here.” I know of no General Counsel/Director of a software company engaged in teaching British students about the technology available to make litigation more efficient and less expensive.

I hope I am wrong!

It must have been extremely painful and one can only sympathise with him. I am sure he was not comforted in any way by the laconic comment at the end of the report that the Food and Drug Administration does not regulate e-cigarettes.

Whatever debate may be emerging on the benefits and dangers of e-smoking, the past month has  proved to be a most fertile time for e-disclosure/e-discovery watchers. Assiduous readers of this and other blogs and commentaries have enjoyed a veritable feast of cases and comments on the subject.

Mr Justice Akenhead has been active in this arena recently (see [2012] EWHC 668 (TCC) (1) Phaestos Limited (2) Mindimaxnox LLP v Peter Ho (2012) QBD (TCC) (Akenhead J) 16/03/2012) and now he has done it again! By this I mean that he has reached a decision which is important in the overall context of the development of the law surrounding the obligations to give disclosure, rather than that he has “put his foot in it.”

His judgment in M3 Properties Limited v Zedhomes Limited [2012] EWHC 780(TCC) is worthy of note because he refused to grant an application for a wide ranging investigation of servers held by the Defendants on the grounds that it would be disproportionate to do so.

Often we see cases where the courts grant applications for further investigation of sources of electronic data but here is a case where the court has decided in the context admittedly of a case worth “only”  £181,000 that such a course is not proportionate. It was alleged by the Defendants that there had been a final settlement of the dispute which had been evidenced by email which the Claimants denied receiving and the Claimants therefore sought an order permitting them to examine the Defendants’ servers to see if the email could be found.

They sought “an order permitting an independent expert forensically to examine Zed’s servers and any backups which it may have to see if either they show the e-mail of 24 April 2007 or if they record the creation of the e-mail at some stage after that date.”

Although there is no reference in the judgment of any evidence produced of the cost of complying with the order, if made, the judge was in no doubt that he should not make the order. There was some suggestion that Zed had destroyed a server and hard drives after the commencement of proceedings and after they had been told by solicitors to retain relevant documents for disclosure.

The judge was having none of it and urged the parties to settle the case through mediation or otherwise.

The Jackson reforms will soon take centre stage once again as the necessary legislation makes its way through Parliament and firms start thinking about how they are going to position themselves in the “brave new world.” Here, the courts can be seen to have grasped the nettle of managing the costs of a case and this is an example of things to come. If Jackson means anything, his reforms will lead to a reduction in costs led by judges exercising their case management powers to ensure that the parties take an economic and proportionate approach to their cases.

The FDA may not intervene in cases of exploding e-cigarettes but it is clear that the courts in this jurisdiction are going to intervene more and more in the future to ensure that the costs of litigation are reduced.

I feel strongly that we need to get away from all the hype about the subject as well as the extraordinary personal attacks on Judge Peck’s integrity contained in the Da Silva plaintiffs’ “paper” submitted to Judge Carter and concentrate on making sense of the various rulings and opinions for our joint edification. If you want to read about what I mean and do not want to go to the source, have a look at Craig Ball’s blog on the subject to get a feel of some of the vitriol – Putting the Duh in Da Silva Moor  [Ball in Your Court, 26th March, 2012].

Firstly, I think it would be useful if lawyers were to ask themselves how this subject would play out here in front of a judge or Master. No one has suggested to me that writing about US decisions is in fact a waste of time because they are US decisions which have no persuasive effect in this jurisdiction. While the cases are, of course, US cases, it does not take a genius to work out that the subject matter has a much wider application than in the courts of New York State (Da Silva) or Illinois (Kleen).

Secondly, I think we have to remind ourselves that the way lawyers used to conduct disclosure and review is no longer acceptable. No one seriously suggests that the kind of manual or linear review that used to take place (piles of paper with paralegals and trainees handling pieces of paper for days on end just to put them in chronological order before any kind of review was possible) is likely to be acceptable today. In that sense we have all moved on! The sheer number of lawyer hours multiplied by the relevant charge out rates is likely to render such an exercise disproportionate in all but the smallest of cases.

Thirdly, no one is saying that predictive coding is a panacea. It is not. For instance it does not work well (or at all) in cases involving a lot of figures or spreadsheets as the process is designed to look at text and not numbers. It is, however, one of the tools in a lawyer’s armoury and needs to be considered (and even rejected if the exercise does not justify its use) in most cases apart from the very smallest.

I am often asked where the tipping point is. There is no definitive answer to the question because everyone will have their own views and each case will be different but what one can say with certainty is that there are lots of cases out there in law firms of varying sizes where lawyers are spending lots of their clients’ money in ways which are generally inefficient and where the chances of achieving a good result are remote.

Two recent instances illustrate the problem:

• A lawyer had 20,000 documents (it might equally have been 10,000 or even 5,000) to review. After appropriate culling, filtering and deduplicating, there remained a substantial number to be reviewed and time was short. This is just the sort of case where a consideration of the benefits of predictive coding was justified. Arguably, it could be negligent not to consider it even if the idea is ultimately rejected for good reasons (and the decision process documented). Such a scenario is by no means an isolated one. There are plenty of cases out there with document sets of a similar size where currently no consideration is being given to the use of predictive coding.
• A second lawyer is dealing with the process of disclosure in a traditional manner on the basis that there just might be, hidden away in the body of documents, the one document which could/might be vital to the case. How quickly that approach becomes disproportionate will depend on the size of the case and the sums involved, but in many instances that position is likely to be reached long before all the documents have been reviewed. There has to be another way.

So, where are we now?

Obviously, we need to consider each case separately because, as the saying goes, there is no such thing as one size fits all.

We should accept that there is now a strong body of evidence that computer assisted review is at least as reliable as human review and that there are studies which suggest that it is superior to human review in many cases.

We need to understand that the gold standard does not lie in competing lists of keywords, often prepared before the issues are fully understood and from different viewpoints. In many cases, keywords either throw up a large number of false positives or underperform in that they miss vital documents. I am aware of no case which expressly endorses the use of keywords as a method of identifying documents which are pertinent from a larger data set, just as there is no case which endorses the use of teams of paralegals and other junior lawyers to handle pieces of paper. Similarly, there is unlikely to be a case where the specific use of predictive coding is endorsed.

We should not forget that Judge Peck did not order the parties to use predictive coding. They had already agreed to do so. All he tried to do was to lay out some guidelines as to how the process should work. Ultimately, what I hope we will gain from Da Silva is guidance as to how the process may be handled. In the end it is all about transparency and if the parties confer with one another to agree the best way forward (and in the absence of agreement have a sensible argument before the court) I suspect that is all that can be expected.

We must await developments in the US in the hope and expectation that we will all be able to draw some guidance from whatever decisions are made in Da Silva and in Kleen. It seems likely that, whatever the guidance, it will have just as much relevance and application to disclosure exercises over here as it is sure to have over there.

If you cannot contain your impatience and want to read a really good assessment of  where we are today, then read John Tredennick’s article -  Judge Peck Provides a Primer on Computer-Assisted Review  [Catalyst, 14th March, 2012]

In the end it is as much about keeping matters in perspective (and costs to a reasonable and effective level) as being able to see the wood for the trees.

Photo credit:  Beech trees (Fagus sylvatica) in the w:Sonian Forest (Forêt de Soignes – Zoniënwoud) Belgium by Donar Reiskoffer [Wikimedia Commons]