It seems obvious to me that if you are going to try and engage anyone in a process which is unfamiliar to them you need at the outset to set their minds at rest and you will not succeed in doing that if you use language with which they cannot identify. At best their eyes glaze over and at worst they run a mile. What makes it worse in the world of e-disclosure/discovery is that they cannot run far because considering whether to use technology is now firmly centre stage in the litigation process. While they may not be able to run far, they will almost certainly not run back to you if you get it wrong to begin with and they will end up with one of the many other organisations who profess to offer similar services. Last time I put the term “e-disclosure” into Google I came up with 95 million hits, so how on earth does a lawyer or anyone else looking for help decide which one to go for?

To be fair to the technology industry, there are a number of complicated and clever technologies on the market and many of them, although different in their way, in reality do much the same thing. So how do you choose?

I have been following the debate about predictive coding with interest. Chris Dale (@chrisdaleoxford) has written a summary of the present state of the debate from his vantage point of sunny Carmel on California and you can read the article here: Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat [e-Disclosure Information Project blog, 2nd Aug, 2011]

One of his points resonated with me particularly. I have noticed in recent presentations that lawyers often now ask about the defensibility of the technology being used. I am not aware of any decision in any jurisdiction where a court has been asked to rule whether a particular piece of technology or process is valid/legal/appropriate, still less have I seen a judgment where the judge has said that a particular process or technology is valid etc.

This is not surprising because most judges are not technical experts themselves and even if they are technically astute the point of their judgments is not likely to bear on the efficacy or otherwise of a particular process or technology. The closest it may come is to consider whether the procedure adopted by a party and its lawyers was appropriate, proportionate or cost effective in the circumstances of the particular case; and that does not get us very far down the road of endorsing the use of a particular piece of technology.

I usually content myself with answering the question about defensibility by pointing out that the CPR now requires a consideration of the use of technology, there has been no case of which I am aware where a court has determined the issues based on the use or not of a particular process and if you want something a little more concrete, you have Senior Master Whitaker in his judgment in Goodale v Ministry of Justice saying:

Indeed, when it comes to review, I am aware of software that will effectively score each document as to its likely relevance and which will enable a prioritisation of categories within the entire document set.

Lawyers should take heart. It is really not that complicated, as many have discovered. Indeed, I have recently been involved in a case which dramatically illustrates the effective use of a variety of pieces of technology with tremendous results and I am hoping to persuade the client to allow me to use it as a case study to share with you all..

Remember the overriding objective of the CPR!

1. These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
2. Dealing with a case justly includes, so far as is practicable –
   1. ensuring that the parties are on an equal footing;
   2. saving expense;
   3. dealing with the case in ways which are proportionate –
      • to the amount of money involved;
      • to the importance of the case;
      • to the complexity of the issues; and
      • to the financial position of each party;
   4. ensuring that it is dealt with expeditiously and fairly; and
   5. allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

If you remember that when you approach a new piece of litigation or the process of collection and review as well as the process of disclosure you will not go far wrong. Add to that a decent expert provider to help and you will not be troubled about considerations of “technospeak” nor defensibility.

Last year, Millnet offered £10,000 worth of processing of electronic documents completely free. As a result, a number of law firms were able to move on pieces of litigation which had previously become stuck because of the costs associated with e-disclosure. Amongst those were two cases with an element of pro bono or charity work involved.

Consistent with our drive to reduce the cost of litigation for our clients, there is now available for a limited period a total  of up to £30,000 of document filtering for relevance, completely free of charge.

Equivio>Relevance is a lawyer led software tool for scoring documents for relevance which can be used at various stages of the litigation process in order to save time and cost. The software was cited recently with approval by Senior Master Whitaker in the Goodale case:

We are just staring into open space as to what the volume of the documents produced by a search is going to be… this is a prime candidate for the application of software, which can de-duplicate that material and render it down to a more sensible size and search it to produce a manageable corpus for human review… Indeed… I am aware of software that will effectively score each document as to its likely relevance and which will enable a prioritisation of categories within the entire document set.

So, don’t delay! Act now and steal a march on others. Your clients will love it!

Offer details: Driving down the cost of e-disclosure

These islands are littered with memorials to historical events and one of the most outstanding is The Tower of London. Built by William the Conqueror following his victory at the Battle of Hastings it was originally a royal palace but soon became a prison and a visible reminder to the defeated English that their new masters from Normandy were not to be thwarted.

I can almost hear the readers snorting that the Conqueror had little knowledge of Smart e-Discovery and even less need to understand its intricacies but I beg them to bear with me because we are about to enter a new dawn in the Strand and elsewhere throughout Her Majesty’s courts.

On 1st October 2010, Practice Direction 31B: Disclosure of Electronic Documents (PD31B), supplementing CPR Part 31 comes into force. Unless the court orders otherwise, PD31B applies to proceedings started on or after October 1st 2010 and applies to proceedings that are (or are likely to be) allocated to the multi-track (which means those cases involving more than £25,000 or which are not straightforward).

I propose to post a short commentary on PD31B shortly in our “all you need to know” section on the right hand side of this page to assist lawyers and their clients who have yet to come to terms with or possibly to grips with this new phenomenon, but today I want to highlight a potentially controversial provision contained within the new rules which may have advisers and their clients worrying about where they will end up and whether their heads will still be attached to their shoulders.

Many of you will be aware that since the judgment of Master Whitaker in Goodale v Ministry of Justice, parties to litigation have been able to take advantage of what was then called the ESI Questionnaire which the Master annexed to his judgment when confronted with the problems of e-disclosure.

PD31B introduces the Electronic Documents Questionnaire (EDQ). Although not compulsory (the wording reads: “In some cases the parties may find it helpful to exchange the EDQ…”)(Rule 10), many lawyers are concerned about the requirement to sign a statement of truth in relation to the answers given when the EDQ is used.

Judging by the number of questions relating to this provision raised in conversations with litigation lawyers and at recent seminars we have given on PD31B, this is an issue which is of real concern.

Lawyers are used to statements of truth which have been around for many years and indeed I recall that they were viewed initially as a useful way of engaging the client in the litigation for which they were responsible!

What is different here is that the person who signs the statement of truth has to attend the first CMC and any subsequent hearing where e-disclosure is likely to be in issue, the inference being that they will have to answer for their sins of commission or omission or at least seek to justify the answers they gave or the reasons why they now want to change them for something different.

Will lawyers have the technical know how in order to complete the questionnaire, let alone sign a statement of truth? Will their clients? Of course, in some cases the answer will be yes but what about what I suspect will be the majority of cases where neither the law firm nor its clients have the requisite knowledge or expertise? Some of the questions requiring an answer are highly technical and the ramifications of particular answers may be enormous which means that parties will have to take great care about the answers they give.

I received an email alert recently prepared by Clark Sargent of Wragge & Co and his team entitled E-disclosure-are you ready to sign? . In the article Clark points out that “proceedings for contempt of court may be brought if a person makes, or causes to be made, a statement of truth without an honest belief in its truth” and it is clear that this is and is intended to be a serious and onerous obligation for the party to litigation to discharge.

Our experience is that lawyers are seriously exercised about this provision because of the obligations imposed by PD31B. So what is the answer?

As so often with things legal, I suspect the real answer is that it depends! It will depend on a number of factors such as the expertise of the advisers or their employees and the use to which they seek to put the EDQ if they use it at all.

Time and experience will tell us what the best practice will be but for the present the best solution we have come up with is a mixture of using the EDQ as a template in discussions with the other parties but not formally lodging it at court (remember it is not compulsory) and ensuring that the answers in the EDQ lodged at court are carefully thought through. In either case parties would be well advised to include in their deliberations input from not only the lawyer and the client but any in house Counsel, any managers involved in the dispute, the client’s IT department and a preferred technology provider whose knowledge and experience of helping other lawyers through the disclosure process will be invaluable particularly if their advice is taken early before mistakes are made and unnecessary cost incurred! Most of this advice, if not all, is given without charge, the expense being incurred after a sound strategy has been debated and agreed.

Incidentally I do not entirely agree with Clark when he asserts that PD31B loads the e-disclosure exercise up front with the cost implications which flow from that. Of course in some cases he might be right and the parties are definitely being encouraged to think about these issues earlier than previously.

I believe getting to grips with issues such as where the data is and how it can be accessed by whom and when and then sifting through it using the latest technology will ultimately save the client lots of money particularly if it means that lawyers only review the really important material and do not spend hours wading through material which is irrelevant or merely copies of other data they have already seen. Technology today is available in the market from a variety of specialist providers and is available on an iterative basis. There are no long term contracts and the technology is always tailored to the demands of the particular case or client so you only spend what you need to spend and do not have to commit huge sums of money up front.

Where I do agree with Clark is that the new PD31B imposes onerous obligations and if you use the EDQ then you will have to take very seriously the obligation to know and understand the answers you give to the questionnaire before appending your signature.

Proceedings for contempt of court are bad enough but may be slightly less worrying than the possibility of a sojourn in The Tower for those who do not take this seriously!

I am not talking about erupting volcanoes and disrupted airline schedules, the General Election (although I see from Twitter that “Doing a Rochdale” is likely to rank highly in the litany of public gaffes alongside President Ford’s “there is no Soviet domination of Eastern Europe” and Gerald Ratner’s less than flattering description of his jewellery), the Greek economic crisis (now extended to Portugal and Spain, where next?) or the debacle over swine flu, the “pandemic” which never was (the use of the word was unnecessary and silly, designed to cause fear and anxiety).

For once, I mean something more prosaic and mainstream, although as someone with an interest in e-disclosure, I have to admit that I have found it quite exciting!

There has been a staggering number of developments in the field of e-disclosure since last autumn. From a position of near invisibility on the radar screens of most lawyers, the whole area is suddenly exploding with cases, initiatives and reports.

What is interesting to the casual observer is that a number of these developments have come about as a result of some very high profile stories which almost everyone will have heard about on subjects as diverse as the Iraq war to the alleged acts and omissions of a local authority social services department. To someone with more than a passing interest in the field, they are surprising because they have all come in a rush but, nonetheless, are exciting for all that!

The season kicked off with Judge Simon Brown’s judgment in Earles v Barclays Bank, continued with Mr Justice Ramsay in Vector v Williams and culminated in Master Whitaker’s judgment in Goodale v Ministry of Justice.

To add to those, we have had the

• final report by Lord Justice Jackson;
• publication in Goodale of the ESI Questionnaire,
• the Court of Appeal decision in The Queen (on the application of Al-Sweady and Others) v Secretary of State for Defence and
• Mr Justice Foskett’s decision in Sharon Shoesmith’s application for judicial review arising out of the Baby P case in Sharon Shoesmith v Ofsted & Others.

As far as I am aware the Shoesmith judgment is not yet on Bailii but the link takes you to the Judiciary’s website where you will find:

• Remarks by Mr Justice Foskett
• Summary of the judgment
• The full judgment of some 170 pages

What lessons can be drawn from all this activity? I suspect that there are many, but prominent on any list must be:

• The Rules (CPR) apply to everyone who uses the courts in this country. They are not voluntary. They apply to all cases and not just the large cases or high profile actions.
• Ignorance of the law has never been a good defence! Ignorance of the rules relating to e-disclosure and the cases on the subject is every bit as unacceptable. I would go so far as to say that the cases show that neither is now an option and to persist in ignorance is negligent. (I say this despite the fact that the existing Practice Direction under Part 31 has been in operation since 2005 and has largely been ignored by lawyers and the judiciary alike!)
• If you litigate in the courts of England and Wales you MUST now consider the problem of electronic documents. You cannot ignore such data. You cannot decide for yourself that you will not disclose them to the other parties or that it is too difficult and/or expensive to do so. The watchwords are now transparency, consultation and cooperation. I remember, as a boy, my maths teacher saying to me over and over again (I was not particularly good at maths as I recall) that he did not mind if I got the answer wrong as long as he could see how I got there. He urged me to show my workings so that he could see that I had understood the process. If I reached the wrong answer but had understood the process, he was prepared to be lenient. On the other hand, if I reached the wrong answer and he could not see how I got there (or if I got the right answer and he could not see my workings) there was no mercy. After all, he reasoned, I could have just guessed and been lucky with the answer! It is just the same with e-disclosure. Consider the problem, work out a plan for dealing with it, discuss it and agree it with the other side and get a court order if you cannot agree, and the judge will understand. In the meantime keep attendance notes of what you say and do, so that you can show the court how you reached the conclusion ultimately arrived at, and you will not go far wrong.
• Do not underestimate the requirement to produce a list of documents accompanied by a disclosure statement. Someone has to put their head on the block and must say, after considered thought, what documents exist and should be disclosed. It is not a tick box, bureaucratic exercise and is one which can and should be undertaken by lawyers in consultation with their clients and any relevant e-disclosure experts.

By way of reminder CPR Rules 31.9 (5) and (6) provide as follows:

(5) The list must include a disclosure statement.

(6) A disclosure statement is a statement made by the party disclosing the documents –

(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;

(b) certifying that he understands the duty to disclose documents; and

(c) certifying that to the best of his knowledge he has carried out that duty.

With that in mind, I want to turn to the Al-Sweady case where the Court of Appeal gave judgment last October.

You may think that the arid wastes of Iraq are unlikely to be fertile territory for e-disclosure. The case arose out of an incident at a check point known as Danny Boy on 14th May 2004 when Iraqi insurgents ambushed the Argyll and Southern Highlanders. There were hotly contested allegations that some of the Iraqis were in fact tortured and killed after they had been taken prisoner by British troops. Serious questions arose under a number of the articles of the European Convention on Human Rights.

It is certainly not my intention to be flippant about the death of anyone because any death which occurs in war is regrettable but I want to consider this case a little further because of what happened in the course of bringing it to trial and what the court had to say about disclosure.

The claimants in this application for judicial review had to make a number of applications for disclosure from the MOD. The detailed position can be seen from the judgment of Lord Justice Scott Baker but a few extracts will suffice to show the serious failure of the authorities to consider properly or at all their obligations on disclosure. For example at paragraph 8, the judge said:

We shall have to return to set out some of the more disturbing aspects of the difficulties caused by the Secretary of State’s attitude to disclosure in a little detail in paragraphs 30 onwards in the hope of avoiding similar problems in future. We were also so concerned about the lamentable approach of the RMP to disclosure that we invited the Treasury Solicitor and the Provost Marshal (who is in charge of the RMP), to come to court on 15 May 2009 to assist in ensuring that proper disclosure would take place. They duly attended and we were grateful for their help, but we will return in paragraph 29 onwards to explain the subsequent problems with the disclosure, which ought to have been given, but which unfortunately was not given, by the Secretary of State.

And again at paragraph 30:

Both before and during the hearing of this judicial review application, the claimants’ solicitors were compelled to make numerous applications for disclosure of relevant documents. It was only when such applications were made that the Secretary of State actually gave some disclosure which the court was then wrongly assured was adequate. Rather than give every instance when this problem arose, we will merely focus on two important areas where we have concluded that there have been serious breaches committed by the Secretary of State’s advisers of the duty to make proper disclosure in this case. The first deals with electronic communications between the Military Facilities in Iraq and United Kingdom command centres relating both to the death of Mr Al-Sweady and also to the treatment of the detained defendants while the second relates to disclosure of material concerning the investigations carried out by the RMP, and in particular by Colonel Dudley Giles, who was the Secretary of State’s principal witness in this case on the issue of the investigation of the claims.

And again at paragraph 44:

In consequence, various inquiries were ordered and the Secretary of State was ordered to pay the costs of the claimants on an indemnity basis. It is deeply regrettable that so much public money and so much court time has been wasted as a consequence of the persistent and repeated failure by the Secretary of State to comply with his duties of disclosure. It is a matter of great surprise and deep disappointment to the court that the Secretary of State still could not be satisfied more than 18 months after this claim was brought that he could give proper disclosure in a case such as the present one with the result that he was obliged to concede defeat and to pay indemnity costs.

The indemnity costs awarded amounted to a sum in the region of £1 million against a claim for twice that submitted by the Claimants.

I am sure that this is not the first time that a court has required the attendance of someone responsible for disclosure to explain the defects found in the exercise under their control. The fact that this involved the Treasury Solicitor and the Provost Marshal in person and that the court ultimately awarded a seven figure sum in indemnity costs should prove to the doubters that the courts take this aspect of litigation extremely seriously.

The lesson is clear. Take your disclosure obligations seriously or face the consequences. Not only that, someone has to carry the can and this case makes clear that this is likely to be a public exercise.

In other words, the blame game means name and shame!

That was not the end of it however. Colonel Dudley Giles was the RMP officer with responsibility for collating the RMP disclosure and played a leading role in what was sent to the Secretary of State, who then, with the help of the Treasury Solicitor and Counsel, advised on the documents to be disclosed to the claimants.

The court referred to lamentable disclosure failures and other shortcomings displayed by Colonel Giles as a witness and concluded at paragraphs 59 and 60:

59. It is incumbent on us to record that we are all firmly of the view that he lacked the necessary objectivity, proficiency and reliability which should be the hallmarks of any witness put forward especially by a Secretary of State in judicial review proceedings or relied on by the Secretary of State to make proper disclosure.

60. Accordingly, if Colonel Giles continues to be put forward as a principal or even a significant witness in judicial review proceeding or if he is in any way responsible for disclosure, it is our view that any Court seized of those proceedings should approach his evidence with the greatest caution.

I can imagine how I would feel, as a lawyer, if my client were described in such terms and it is surely an object lesson to all those charged with disclosure obligations to take the greatest care in making disclosure in civil proceedings in our courts.

There can now be no doubt, if there ever were, that those in default will be named, will and should be shamed and that is what happens when the game turns nasty and someone has to take the blame for defective disclosure.

This was the judgment of one of the highest courts in the land and Lord Justice Scott Baker and his fellow judges, Mr Justice Silber and Mr Justice Sweeney did not pull any punches right to the end where they added at paragraph 67:

We cannot part with this case without paying tribute to the claimants’ legal advisers who although greatly outnumbered by the Secretary of State’s legal team have persisted with their requests for disclosure skilfully and with commendable determination.

Ouch! Talk about rubbing it in!

Finally, we now have the judgment of Mr Justice Foskett in the Sharon Shoesmith case. Should you be inclined to click through to the judiciary website, you will find there the remarks made by the Judge, a summary of the judgment and the full text of the judgment, which will doubtless be in Bailii shortly.

At first sight, the subject matter of a claim for judicial review of the decision by the infamous Ed Balls to sack the head of Haringey’s Children’s Services Department after the death of Peter Connelly (Baby P) at the hands of his mother, her boyfriend and the boyfriend’s brother seemed unlikely to be fertile territory for a commentary on electronic disclosure. Once again, however, huge and damaging publicity for defective disclosure resulted from an examination by the court of the efforts of the defendants to discharge their disclosure obligations and once again the person responsible was named!

The case was high profile from the outset as the public reacted with revulsion to the news of the death of Baby P and as the details became known of the involvement of Haringey’s Children’s department and subsequently the actions of the Secretary of State and OFSTED.

It deals with a number of issues not relevant to my purpose here and, although Sharon Shoesmith failed in her application she may yet appeal and in any event she has stated she intends to pursue her claims in the Employment Tribunal for unfair dismissal and sexual discrimination.

I have not yet had occasion to examine the judgement in detail but I want to mention what the judge described as the “inept” handling by OFSTED of its obligation of candour and the instruction to delete emails. The judge was profoundly concerned with these issues and he has indicated that a number of issues remain outstanding which he intends to raise with the Treasury Solicitor personally. (See appendix 2 paragraph 41 of the judgment).

The judge also had reason to consider an internal document issued by the Treasury Solicitor in January 2010 as a direct result of the judgment in Al-Sweady and entitled Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings. See appendix 2 at paragraphs 6 and 7.

It will be interesting to see what comes out of the session between the judge and the Treasury Solicitor but in any event the courts have laid down another marker on the issue of disclosure and the duty of candour which litigants ignore at their peril.

Now we have a report in The Lawyer [Russian Retribution, 31 March, 2010] that two of Russia’s wealthiest men are to face one another in Court in 2011 after lawyers acting for Roman Abramovich failed to persuade Mr Justice Colman to strike out claims by Boris Berezovsky that Abramovich used coercive tactics against his former business partner which Berezovsky alleges caused him billions of pounds in losses.

The judge criticised the costs of the strike out application which are believed to be in the region of £1 million each and which occupied the court for 15 days, three times longer than estimated. The full trial has been listed for 12 weeks next autumn (2011).

The documentation and witness statement evidence was said to be “extremely voluminous”.

Given that both parties are represented by extremely experienced and well known law firms, we can be sure that they have taken account of the recent judgment in Earles v Barclays Bank and the publication of the ESI questionnaire as a schedule to the Master’s judgment in Goodale v Ministry of Justice.

It will be fascinating to see how this one works out. Whatever happens, AR and BB will have to pay more than the crooked sixpence and the cost of the cleaner for the dolls’ house in the Beatrix Potter story. Reputedly, they can afford to do so!

Richard Susskind’s analogy, accompanied by the appropriate slide, the contents of which I will leave to your imagination, was one of a number of catchy themes he used to describe the changing world of legal services last week at the Commercial Litigators’ Forum. 

What came to mind as he spoke was an image of Starship Enterprise and a reminder of the most celebrated split infinitive in the entire universe.  Whilst the opening credits of Star Trek talk of the ship’s mission “to boldly go where no man has gone before”,  back on earth my mind was on the bold new frontiers facing those engaged in the business of litigation. 

Whether we like it or not, there is a momentum for change in the provision of legal services at present fuelled by a number of drivers: 

• Clients wanting more for less.
• The need for dispute avoidance and legal risk management advice.
• The development of technology and the speed with which it can deliver.
• Liberalisation: The Legal Services Act brings about a number of changes, or will do so, when it is fully in force and investors are looking at law firms or parts of them to see where they can put their money.
• After a recession ( and do not let anyone tell you we are out of it yet) why would law firms go back to the pre recession levels of employment of trainees, paralegals and lawyers when there are good people out there prepared and able to work for firms on a contract basis of for a particular project?
• Third Party Litigation Funding may well see new sorts of people overseeing litigation teams.
• Online dispute resolution: what price a dispute resolution service on E-Bay?
• Clients feel a strong attraction to the benefits of ADR and particularly to mediation. After all, not every case is a bet the ranch case and what have you got to lose?
• The case law on e-disclosure is developing. I have already commented on the case of Goodale v Ministry of Justice and the ESI questionnaire attached as a schedule to the judgment. 

Some might argue that terrible economic conditions have created all sorts of problems but once the economy recovers, everything in the garden will be rosy again. But why should General Counsel or the client go back to the old ways once they have seen that outsourcing to India, for a tenth of the cost of the same service in Europe or the US, delivers a reliable and cost effective service? 

Asked from the floor what his predictions for the next few years would be and if he had £100 million to invest where we would he spend the money, Richard said that he would look seriously at three areas: 

1. Legal Process Outsourcing.
2. A temporary agency providing senior, well respected lawyers to law firms on a contract or part time/project by project basis.
3. A start up consisting of a group of the finest lawyers to operate on the same basic model as Counsel’s chambers with smart premises, low overheads and offering fantastic legal advice where needed at a price which reflects the importance of the work they do. There would be no need to invest in expensive technology but only to participate in the marketplace for such technology, buying in what was needed on a case by case basis.

Why not?

“The Delicious Miss Dahl” (and that is the title of the series and not just my opinion!) is to become the latest television cook as a result of the success of “Miss Dahl’s Voluptuous Delights” (that’s the title of the book and not only my view. Do keep awake at the back!!).

Those of us who enjoy our food, both the eating and the cooking, are used to watching the sensual Nigella Lawson in her kitchen, and Sophie Dahl’s new show promises to be another visual and culinary delight.

Which will prove to be better and how will we know?

Beauty is in the eye of the beholder, so it is said, and I am certainly not going to ruin the relationship with my readers which has built up since I started this blog last August by taking sides. You must make up your own minds.

And that is precisely what I have been urging those involved in litigation to do in relation to e-discovery. Regular readers will know that I have one modest ambition for 2010 and that is that litigants and their advisers will start to think a little bit more strategically in this area and I have written about this subject again and again in the past few months.

To be successful in the realms of e-disclosure, you do need to know and understand the obligations imposed on users of the court system and the rules and then abide by them. It is clear now beyond doubt that everyone needs to consider whether disclosure, review and/or perhaps the preparation required before proofing vital witnesses, will be assisted by the technology available to ease the pressure of handling the material available.

How you decide which provider to approach is of course crucial. Just as I have previously watched Nigella go through her routines with the pots and pans, so I am eager to see what Sophie gets up to in the kitchen. It is the same with technology providers. Find one or two you like and talk to them. Watch their demos if you like and try out their wares. Do it now, before you need their services and you will in all probability enjoy the experience. You will certainly be in a better position to explain to your clients when the litigation starts what your views are of their respective talents, merits and delivery.

If you have not yet caught up with Goodale v Ministry of Justice and the draft ESI questionnaire in the schedule to Master Steven Whitaker’s judgement, then I urge you to read it.

I know Master Whitaker will not be offended if I say that he has it all to do when up against Sophie and Nigella, but in the e-disclosure field he is right up there with the stars, and that is without the very fetching tricorn hat which he wears when acting in his official capacity as the Queen’s Remembrancer!

It seems like that in the world of e-discovery!

In the last week, the judgment in Goodale v Ministry of Justice has been published and, excitingly, so has the draft of the Technology Questionnaire, currently in a subcommittee of the Rules Committee.

In one place and at the same time, Master Whitaker has moved the discussion on e-disclosure to another level. The judgement is well worth reading (and is only 28 paragraphs long) but the Master encapsulates what many practitioners have long realised was the problem with e-disclosure and then comes up with a solution!

The Master says that defendants

must also complete the questionnaire in the schedule below as a means of providing the claimant and the court with the necessary information in a structured manner, should there be any further application for directions on disclosure.”

The Senior Master also makes it clear that parties to litigation should take an incremental approach to e-disclosure. He says in paragraph 28

I think the proper thing to do is to start with a fairly crude search and then, if the numbers are within reason, to work with experts to render the corpus of documents down and de-duplicate them and then move on to the review stage.

This approach resonates precisely with the approach Millnet has been advocating for some time now. It is clear that not to look at electronic documents is NOT now an option. Equally, it is clear that incurring a huge amount of expense at the outset or, worse still, entering into a long term hosting commitment too early, is not the way to proceed.

This week has seen two cases come into the office, both of which suffer from the same problems identified by the Master. Both cases have a potentially huge amount of data but both have relatively small sums of money at stake.

The approach in Goodale is tailor-made for them both and will surely have wider application as time goes by.

Master Whitaker is well known as an advocate of proportionate e-disclosure in appropriate cases and also as a judge experienced in dealing with Group Litigation orders as in this case involving the Opiate Dependent Prisoners Litigation.

What makes this judgment of particular interest to those involved in the whole area of electronic disclosure is the fact that the Master saw fit to include in his judgement the ESI questionnaire which the Rule Committee decided recently to refer to another subcommittee.

As far as I am aware this is the first time the questionnaire has seen the light of day. From a personal point of view, having written about my partial disappointment at the contents of the Jackson Review [Motherhood and apple pie, 18 January 2010], I am delighted that we have been granted a preview of what the rules may look like when they are incorporated into the CPR as Lord Justice Jackson clearly intends they should. He made it clear that he was not going to make any recommendations in relation to this aspect of civil litigation because he endorsed what the members of the Rule Committee was doing. As his press conference on the day of the publication of his report was attended by not only the Master of the Rolls but also the Lord Chief Justice, we must assume that in due course the rules will be amended to take account of this questionnaire.

But, you may say, they are not in the Rules yet and I do not need to be bothered with them. Well, I am not so sure.

I have said before on many occasions that the rules as presently constituted provide a framework within which litigators and their clients must work and the sanctions are there for any failure to comply. As HHJ Simon Brown said in Earles v Barclays Bank , and I paraphrase, the rules are not voluntary. If you litigate in this country you must comply with them. It is gross incompetence not to.

Now we have the authority of the Senior Master that the ESI questionnaire can be used in case management, and used NOW! Practitioners do not have to wait for the changes in the Rules. There is now authority to this effect.

There is a very helpful summary for practitioners on the website of the Society for Computers & Law together with links to the Guidance notes and the Glossary prepared by the committee which produced the questionnaire which may also be downloaded. See Disclosure: The ESI Questionnaire’s Debut.

We will doubtless hear more about this subject as the months progress and we will certainly be coming back to it.

In the meantime, as part of our ongoing contribution to the education of lawyers who have to grapple with the problems of electronic disclosure and to the spirit of Jackson and the reduction in the cost of litigation, we will be publishing shortly our own guide to the questions which lawyers often ask in relation to e-disclosure, with our suggested answers and a detailed glossary of many of the commonest terms used in the field of e-disclosure.

Our recent offer of up to £10,000 worth of free processing was hugely popular and oversubscribed and has now ended well in advance of the published deadline for submission to us of possible cases for consideration. However, we intend to continue to look for ways in which we can help our clients and those who have not used our services before to keep the cost of litigation down as to which more in due course.