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25 June, 2010  
Avoiding the discovery train wreck

London calling … Disclosing electronic documents … Costs have travelled north in the wake of the Woolf reforms … Less willingness to order discovery … New gardening broom in Birmingham tries to keep the lid on the cost of disclosure … Leverhulme reports

imageWould there be uproar if a group of male lawyers announced that they were better at a particular legal skill than women?

Would there be howls of indignation if this troop of men were to create an organisation to parade its expertise?

Well, in a delightful setting in the sleepy old town of Birmingham, no-one batted an eyelid when a group called Women in eDiscovery gathered to share their experiences about a hot topic in litigation: the disclosure of electronic documents.

Hot as it is, it might not catch fire here for a few months.

Most lawyers shy away from it because they don’t know the difference between hardware and software.

The thought of advising a client about the necessity of harvesting residual data using text qualifiers or concept searches is like being forced to learn and speak Mandarin in a week.

A document is anything upon which information is recorded. It is reckoned that nearly 90 percent of documents are generated electronically.

IDC, the global market and intelligence firm estimates that 22.2 billion emails are sent each day.

Good lawyers know the value of an email as evidence. It is generally contemporaneous (how many people feel compelled to respond to an email immediately?); it is a good indication of the sender’s state of mind (how many of us have regretted pressing the send button, specially when we were angry?); and an email unlike a handwritten letter is not private.

The old saw must now be taken literally. “A lie can be half-way around the world before the truth has got its boots on.”

Companies routinely destroy emails. But such evidence is hard to obliterate. The cost of searching for electronic documents can be crippling.

imageAs Senior Master Whitaker said in Goodale, the parties usually know what paper they have but have no idea about their electronically stored information; its quantity; where it is stored and whether it is searchable.

Lord Justice Jacob (pic), the patent specialist who writes very entertaining judgments, said in Nichia that despite the aim of the Woolf reforms being to bring down costs, practitioners have carried on much as before. Costs have increased.

Sir Robin said the time had come where proportionality required that disclosure should not normally be ordered.

In the same case, Lord Justice Pill said that a judge, with the help of the parties, should make an order tailored to achieving a just outcome, including as far as possible limiting the costs.

Incidentally, a few years ago Jakes and the Pillster had a celebrated disagreement in the Technip case after Jakes called inventors “nerds.”

* * *

imageA new broom is often not a popular recruit to the broom cupboard and so it is proving in Birmingham.

His Honour Judge Simon Brown QC (pic) of the Birmingham Mercantile Court takes his responsibilities seriously and is doing what the Court of Appeal directs.

He says it is gross incompetence if practitioners do not to know and practise the rules.

This judge is actively managing his cases as early as possible and keeping a cap on the costs. He is asking the parties to co-operate about disclosure, and to tell the court what searches they propose and how much they are going to cost. It is frequently done in the presence of the clients.

The judge often tells the parties to limit their documents to one file of 250 pages and warns litigants to refrain from printing them until it is absolutely necessary.

As a judge, the affable Simon Brown came to prominence in Earles, when the court penalised the successful respondent (a bank) 25 percent in costs for failing to disclose documents.

Had they been revealed two years before, the case would have ended with a quick loss to the claimant.

The decision caused a lot of muttering among commercial law firms.

imageHowever, Lord Justice Jackson has weighed in with a recommendation that lawyers should undergo training in e-disclosure, and the new broom’s approach is gaining a lot of support.

Judge Brown is sweet on IT, but not even Jacob LJ would call him a nerd.

He has a hinterland. He is the Master Gardener of the Inner Temple (seen here) and he and his wife Kathy hold open days for the public at their home and garden in Bedfordshire.

* * *

Which brings us to the Electronic Women, who hail from America where discovery or disclosure is grossly expensive and who came to England to warn the locals to avoid what they call “the train wreck in the United States”.

During the seminar, a few good men crept into the room, but they were made very welcome.

The message was clear. Women are better at tasks like disclosure (presumably because they are more tidy and thorough) and this is an area where young female litigators can really shine.

imageMaybe they are right. But women have other qualities too. Judge Jane Magnus Stinson (pic), of the Federal Court in Indiana and a judge to watch, makes Judge Simon Brown look like Pollyanna.

In a recent decision, Novelty v Mountain View Marketing, (04/21/10), Her Honour fined a party which had been coy about discovery $50,000 for wasting the court’s time.

That wasn’t all. Two counsel (both chaps) were sent on a professional conduct course entitled “Applied Professionalism Program for Newly Admitted Attorneys”.

How would that go down in Australia?