Discovering Jackson

February 2, 2010

The sections relating to disclosure and e-disclosure in the Jackson Report are a call to action for lawyers and judges without waiting for any actual amendment to the Rules, writes Chris Dale. The key element which Jackson identifies is education, and we can get on with that tomorrow.

The 558 pages of Lord Justice Jackson’s Final Report on Litigation Costs have hit my screen with a thump. My focus inevitably is on the sections relating to disclosure and e-disclosure between pages 364 and 374, and on the section on disclosure in the Case Management section beginning on page 275. As with his Preliminary Report, Lord Justice Jackson devotes a section to e-Disclosure separately from the section on disclosure itself, that is, the mechanics are distinguished from the scope of disclosure. Lord Justice Jackson’s concise style means that a great deal is packed into these few pages. It is all good stuff.

There are sections on case management (with a hopeful point about leadership from the Court of Appeal on CPR matters), on costs management, costs shifting, and on court administration with particular reference to the courts’ IT infrastructure. These are all important and I will come back to them. The key points for those interested in electronic disclosure are:

* e-Disclosure as a topic should form a substantial part of CPD for solicitors and barristers who will have to deal with e-disclosure in practice and in the training of judges who will have to deal with e-disclosure on the bench [Para 4.1(i) on page 374]
* a new CPR Rule 31.5A should be drafted to adopt the “menu option” (with no default position, the court choosing from a range of possible disclosure orders) in large commercial and similar claims and in any case where the costs of standard disclosure are likely to be disproportionate. [Para 4.1(i) on page 374, the summary in Para 2.3 on page 276, and the draft beginning on page 370]
* The “substance of the proposed draft Practice Direction is excellent” and no procedural reform is recommended if the PD is “approved in substantially its present form” [Para 2.5 on page 366]
* The value of an e-disclosure demonstration which was given to Sir Rupert; something of this kind would “assist other members of the judiciary in knowing what technological help is available to the parties”

If I did not get everything I hoped for, I certainly do not complain at this (it was ambitious, I know, to ask for “disclosure” to be given back its proper name “discovery”).

Some of these points warrant a closer look:

The scope of disclosure

The mechanics of rules, case management and technology affect, and are affected by, the target which has to be reached. Sir Rupert recites the arguments about the definition of a disclosable document, rejecting the idea that “the current scope of disclosure is correct”, and adding that: 'if the situation is distilled to the simple question “justice or costs?”, costs, commercially, must prevail' [paragraph 3.5 on page 369].

He says that the narrower definition which now obtains – not “relevance”, but documents supportive of or adverse to the case of any party – whilst resulting in the disclosure of fewer documents than pre-1999, involves each party in higher costs, at least in relation to their own disclosure, because of the obligation to consider whether each document is supportive or adverse. The de facto position, Lord Justice Jackson notes (as he did in his Preliminary Report), is that most solicitors ignore the new definition and simply give disclosure of everything relevant as they would have done before 1999.

The significance of the proposed new Rule 31.5A [Para 3.11 on page 370] is better captured by the label “no default position” than by the name “menu option” which it acquired in the course of discussion. The “no default position” suggestion is set out on page 276 as follows:

No default position. Another possibility is that the various breadths of disclosure could be set out in the relevant practice direction. With no default position, at the first CMC the parties and the court would be forced to turn their mind to what would be the most appropriate process to adopt in those proceedings.

There is a case for saying (that is, I would say) that judges have power to make any of these orders within the rules as they stand. The fact is, however, that judges have not done well at managing this aspect of civil cases (a failing which is specifically referred to in the report and, so I gather, at the launch today). Anything which spells out more clearly what the options are must be welcomed.

Relationship between the proposed Rule 31.5A and the draft Practice Direction

I have mentioned briefly above, and will come back to, the draft practice direction and eDisclosure questionnaire produced by Master Whitaker’s drafting group (of which I am a member) to which Sir Rupert refers with approval. As Sir Rupert himself observes (in paragraph 3.12 on page 372) there are inconsistencies between the draft rule and the practice direction which was being thrashed out concurrently with it. Sir Rupert intends that the draft rule should be reconsidered once “the disclosure practice direction has reached its final form”.

It is not quite clear how this will work through in practice, since we hope that the practice direction will come into force in April. I am not myself averse to the idea that we run with the new practice direction for a while, and that future rule changes of the kind envisaged in the report should take account of that experience. Perhaps that is because the scars from running with the PD are still fresh on my back, and I do not want to see the whole lot bogged down again. The Rule Committee will have enough on its plate.

E-Disclosure Assessors

The wider subject of case management includes the question whether there is room in the process for the e-disclosure assessors which Sir Rupert raised as a possibility in his Preliminary Report. He draws attention to the strong and conflicting views on this (I am in favour, but know of others who are equally strongly against). His conclusion (in Para 3.6 on page 373) is that parties might agree, subject to the approval of the court, to engage a disclosure assessor. Before any changes are made to the CPR, he says, “it would be necessary to gather up-to-date information about the US experience of magistrate judges and special masters supervising discovery” and he makes no recommendations about disclosure assessors.

International Influences

It is important to note that Sir Rupert had meetings with US magistrate judges as part of his preliminary fact-finding tour, and that one of the information-gathering meetings which he lists was a meeting with Chief US Magistrate Judge Paul Grimm, US Magistrate Judge John Facciola, HHJ Simon Brown QC and me in June 2009. I do not think that anyone questions why I devote a high proportion of my time to the interchange of e-discovery ideas with the US and other jurisdictions but, if they were to do so, Sir Rupert Jackson’s references to experiences elsewhere provides justification, if such were needed.

This cuts both ways (or, rather, cuts several ways, since this report and its outcome will be observed with interest in Australia, Canada, Hong Kong and Singapore, as well as in the US).

The Draft Practice Direction and E-Disclosure Questionnaire

Sir Rupert Jackson’s endorsement of the practice direction and questionnaire produced by Senior Master Whitaker’s drafting group is gratifying for those of us who were involved in producing it and, perhaps, a source of relief to Sir Rupert who was thereby relieved of the need to develop a detailed proposal of his own (not that he would have baulked at doing so if he had felt it necessary). He summarises its main provisions in Para 2.4 on page 365, including the requirement in certain cases that parties complete and exchange an ESI Questionnaire, the form of which also fell to the Whitaker committee.

The Questionnaire is the biggest single change brought about by the proposed PD and is unmatched in any other jurisdiction. To those of us who wrote it, it is no more than the logical formalisation of the existing obligation to discuss sources of documents, which is itself just the obvious pre-requisite for the co-operative and hands-on-the-table approach which is required or encouraged in most other jurisdictions, with the descriptive label of “meet and confer”.

Sir Rupert’s conclusion (in Para 2.5 on page 366) is: "In my view, the substance of the practice direction is excellent and it makes appropriate provision for e-Disclosure. On the assumption that this practice direction will be approved in substantially its present form by the Rule Committee, I do not make any recommendation for procedural reform in relation to e-Disclosure."

The practice direction and its questionnaire await final approval by the Civil Procedure Rule Committee. If we get that, as I have said, the PD could be in place by April of this year.

Access to technological assistance

The second observation, familiar to those who read these pages regularly, relates to the need for all involved to have an understanding of the available technology. Sir Rupert expresses it thus:

"…judges, solicitors and counsel need to acquire (or have access to someone who has) a much more detailed understanding of the technology available and how it functions. Both practitioners and judges need such an understanding, so that the court can manage the litigation properly and keep the costs of e-disclosure within sensible bounds…Lawyers need both education and training in respect of e-disclosure. They need education in the broader capabilities of the ever developing software systems and in the variables which make one software system different from another. They also need training in how to make the best use of whatever software systems are adopted." [Paragraph 2.8 on page 367].

Sir Rupert refers in this context (in Para 2.2 on page 365) to a demonstration which I arranged in June 2009 at 4 Pump Court. He described how three specialist providers (they were Autonomy, Epiq and FTI – see my account of that demonstration):

demonstrated how their respective software systems could search, sample, categorise and organise the data…[to] whittle down as far as possible the potentially relevant documents … passed to the lawyers for review.

He added this:

"I am bound to say that the systems developed by each of those specialist providers are extremely impressive. I am sure that it would assist other members of the judiciary to know what technological help is available to the parties, to enable them to manage the disclosure process."

This passage emphasises a critical difference between the approach taken by Sir Rupert Jackson and previous attempts at reform of e-discovery. I was amongst those who sought to introduce such demonstrations into the discussions which led to the 1999 rules. I do not know that anyone actually said to us that industry representatives were unwelcome in those discussions, but none of us was asked to take part. It is impossible – literally impossible – to understand how document-heavy cases can be managed without an understanding of the technology which exists to deal with the practical problems which arise.

What is important here is the juxtaposition of the rule-based options which are available to the case managing judge and the technology which must underlie the decision-making. There is a direct and obvious link between the proposed paragraph 7(a) of the draft new Rule 31.5A -

"the court may at any point give directions as to how the disclosure ordered is to be given, and in particular … what searches are to be undertaken, of where, for what, in respect of which time periods and by whom

…and an understanding of the technology available to achieve this."

The key requirement is the ability for judges to self-start on the subject even where the parties do not raise it. Most judges can get to grips with something put into issue by the parties. What is required comes at a higher level – the ability to drive the parties in the right direction where they are unwilling or unable to take themselves there. For that the judge needs a certain level of knowledge at least as to the existence of the potential solutions.

So far so good. Law firms can arrange educational sessions and demonstrations as they wish, and the suppliers into the market will be happy to play their part. The real concern is that the new judicial syllabus offers very little space for judges to focus on e-Disclosure, whatever Sir Rupert’s report says about its importance. We have a number of initiatives either in hand or in contemplation which will, I hope, remedy this, and I will write more about them shortly.

Summary

This article looks only at one small corner of Sir Rupert Jackson’s report. Add this report, and the practice direction and questionnaire which it endorses, to last year’s judgment in Earles v Barclays Bank Plc [2009] EWHC 2500 (Mercantile) and throw in the incipient debate about the scope of the duty to preserve initiated by Professor Peter Hibbert in the Times at the end of last year. The implications – of law, of practice and of technology – are considerable.

Mix that with wider issues – the rest of the Jackson Report, the impact of the Legal Services Act 2006, the growing interest in outsourcing and other ways of managing work in firms, and the moves by companies towards taking some of the e-disclosure process in house. Put all that on the context of apparent recovery from recession, with its implications for litigation and regulatory work, and you can foresee real prospects for change in the way we conduct litigation, and much incentive for lawyers and judges to make it happen.

There is much talk about the possibility of the Jackson Report being buried or quietly forgotten by a government with other things on its plate. Nothing in the disclosure recommendations requires primary legislation, and the Lord Chief Justice and the Master of the Rolls have indicated their strong backing for the report generally and (so I gather from those who were at the launch) specifically for the sections on case management.

We do not actually need the involvement of government save in respect of proposals which require Parliamentary time or (as with the critical recommendations as to court IT and administration) any investment. The case management sections relevant to disclosure require neither. Many of them, frankly, need no more than a judge willing to recognise the obligations to manage which exist anyway but which Lord Justice Jackson has highlighted. In that sense, the mere publication of the Report – and in particular the emphasis on education – is enough to move us forward on this front.