Earlier this year, Millnet surprised the market by offering up to £10k worth of free e-discovery services. The offer, which was open to the first 10 law firms who applied, was oversubscribed and was withdrawn well before the deadline for applications expired.

Managing Director James Moeskops said: “We were delighted by the response to our offer earlier this year. It became clear to us that there was a substantial body of litigation which was, in effect, paralysed. Lawyers and their clients were unable to find their way through the problems inherent in any e-discovery exercise, and were inhibited from proceeding because of the perceived costs involved. This was especially true in cases where there was not a lot of money at issue but there were lots of documents to review. We were delighted to be able to help a number of both new and existing clients to resolve these issues, including a charity and a company in Chapter 11.”

Pressed further after today’s announcement,  James added:

“We are committed to helping lawyers and their clients work their way through the litigation process to ensure that any perceived barriers to dealing with e-discovery are minimised or removed altogether. With that in mind, we are today offering to anyone with issues about e-discovery to meet with one of our experienced teams, at no cost, to undertake a rigorous process of enquiry as to how the case can be moved on. We are calling this “Paralysis Analysis”.

Every client who instructs us can expect to receive:

• Analysis of the size and nature of the e-discovery task 
• Recommendations on the way forward
• Clear guidance on cost

We know there are a large number of cases where the process is, in effect, paralysed and we want to help. We believe that our Paralysis Analysis is the right approach for our clients”.

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.

If you have been abreast of recent economic developments, you will know that the Greeks are unlikely to be bearing any gifts for anyone just now. The poor things have been led by the nose ever since entry into the euro into believing that their Government can go on spending money without any idea how they are going to pay it back. We in this country should on no account be smug as our Government has been the most profligate ever and has racked up debts which will keep us all in hock for years to come.

Indeed, I came across one of those extraordinary statistics the other day which made me reflect how awful our predicament actually is. You may possibly remember the unmemorable Jacqui Smith, late of the Home Office, and her claim to recoup from the taxpayer the 88 pence cost of a new bathplug for one of the places she had decided she needed to stay for the better performance of her duties. Apparently, someone has worked out that Britain’s debt, run up by the Government of which she was such an undistinguished member, rises by enough every day to buy everyone in the world a new bathplug.

Well, that’s alright then! At least no one has come up with similar statistics on the prevalence of dodgy videos!

The Trojan horse story is well known. What may not be so well known is that a Trojan horse is also a “non self-replicating malware” beloved of the computer hacker. It appears to perform a desirable function for the user but instead facilitates unauthorised access to the user’s computer system. I am sure there is a parallel here with our current economic woes but I will come back to that on another occasion.

In the meantime, thank you to Chris for reporting the offer. The response has been huge and varied. We have taken on work from sources which have not used us before and have delivered Smart e-Discovery services to firms ranging from the largest in the country to some of the smaller specialists. What is more, we have been able to provide services to clients who, previously, might not have instructed us. For example we have been able to undertake processing in cases where there is a large amount of potentially useful data but not much money at stake, such as a dispute on behalf of a charity and on behalf of a company in Chapter 11 administration.

We intend to review shortly where we go next and will keep readers informed. For now, if you have data to be processed, do give us a call. If you fear Greeks bearing gifts, you might just miss out!