Readiness is next to godliness

By | 16th February 2010

Many readers (and we have had a dramatic increase since the start of the year) will recall that my modest hope for 2010 was that there would be more strategic thought during the litigation process than is often apparent when we are called in to assist.

Frankly, not a lot of strategic thought can be undertaken when the disclosure deadline is only days away and there is a terabyte of data to review and the other side has just produced more material than you thought possible or likely.

Of course, if you have plenty of time you can mull over strategy to your heart’s content but most litigation cases do not allow the participants that luxury!

So, how can you make time?

Much of the technology now available is quick and cost effective but like most processes it relies on quality material to produce the best results. We are all familiar with the cry: “Rubbish in, rubbish out”! You get my meaning.

What would make the job of the lawyer and the e-discovery service provider easier?

If the case of Earles v Barclays Bank PLC  means anything, it means that practitioners not only need to be aware of the provisions of the CPR but also to abide by them. Remember that Judge Brown said that it was “gross incompetence” not to! That is a harsh warning to the legal profession that, if they do not follow the rules, not only will they run the risk that their clients are penalised in costs, but also they run the risk of being sued for negligence which will not please their professional negligence insurers.

Judge Brown was speaking in the context of Part 31 and its Practice Direction in relation to disclosure in general and e-disclosure in particular. In the next few weeks, the Rules Committee is likely to publish the long awaited Technology Questionnaire and the new Practice Direction and suddenly there will be a new regime for lawyers to come to terms with.

Many firms are taking or have taken steps to deal with the increasing prevalence of electronic disclosure. It is surely inescapable that, after at least 15 years or more of widespread use of emails, almost every piece of contentious work is going to involve consideration of some electronic material. Where you used to make do with the paper file, now you find that at least some of what would have been committed to a paper file in the past has now not been committed to paper but is the subject of email or is in some other electronic format which might be germane to the issues and which at least needs to be looked at if not disclosed.

In the past few weeks, I have noticed a remarkable upturn in requests for information and training presentations which suggest to me that there are more and more lawyers out there who realise that they cannot ignore electronic disclosure, even though there are inevitably some who, for the time being, have decided “we do not need this now”. Well, we will see!

Where lawyers and their clients can really make a difference is by thinking ahead strategically while there is time and by that I mean while there may not be a pressing need. Once the heat is on is not the time to start thinking about strategy because looming deadlines will not allow for that.

A switched-on litigation lawyer said to me recently that she relished the opportunity to look around the marketplace to see what was there and what might be useful and to make relationships with potential suppliers before she was under client or time pressure in an area which is becoming commonplace and where there are a number of differing solutions available. Armed with that knowledge, she felt she was in a better position to talk to her clients about:

  • Records management policy.
  • Storage and preservation of documents in paper or electronic form
  • Computer systems, storage systems and other devices where material is stored
  • An audit of company equipment such as mobiles, PDAs, photocopier logs, and voice tapes.
  • Litigation readiness in general.

This last area is a huge problem for corporates. It costs money and the time never seems to be right to use hard pressed budgets for something which might never happen. But if the FD knew, or the company’s lawyers knew, that once litigation was in prospect they could easily access the information they needed to succeed in or defend their claim successfully, what price would they place on that ability?

To take a simple example, why do we all keep documents for which there is unlikely to be any future use? To put myself in the firing line, I was clearing out a drawer at home the other day to make space for the ever increasing amount of junk I seem to need to keep in my desk, when I came across a sheaf of old credit card slips. On closer examination, most appeared to date from 2001 and had no obvious connection with one another. They did not appear to be expenses claims never made nor did they concern a series of purchases of related items. Why had I kept them? I could not remember, but presumably I had thought they would be useful at some stage. Obviously they were not and I shredded them. My point is clear I hope. If you have a policy which is well thought through and retain only that material which is realistically likely to be useful you will not end up storing stuff you don’t want or need nor will you waste time, space and money in doing so. When it comes to litigation, there is also a fair chance that you will have stored the remainder in such a way that it is relatively easy to retrieve.

My friendly switched-on lawyer also said to me that she always adopted the line with clients which she had been trained to adopt when a junior lawyer. In effect, she confirmed what I had always thought to be the case. Disclosure is really no different to old fashioned paper discovery despite the name change. You identify the place where the paper (and it was all paper in those days) was stored and you went and looked at it, in a desk drawer, in a filing cabinet, in an office, in a warehouse or wherever it had been stored. Nothing much has changed. Disclosure still means you have to enquire where the material is stored or backed up and you still have to work out how best to retrieve it, process it and then analyse it just as you did before. There really is no magic in e-disclosure. Granted some of the technology is pretty clever but most of us do not need to understand how it works. You need to know what it can deliver and once you have obtained the material to be processed you can let the provider work his magic and then, within a few hours or days, start the process for which lawyers rightly earn their fees, the analysis and review of the material with a view to advising the client.

Time spent in reconnaissance is seldom wasted is what the military often say. With e-disclosure, this is also true. Litigation readiness and a willingness to apply the same rigour to the retrieval process as used to be applied in the past will actually reduce costs in the long run. After all, why retain documents you are never likely to need again? It is as bad as retaining useless old credit card slips!

As always, technology can help identify relevant documents and reduce the time required for review. But you have to have had a system which enables you to retrieve the material swiftly and accurately before you get there!

My switched-on informant (I am not sure there is a feminine equivalent for that word) also thinks that an ability to talk about this kind of strategy with a client and to be able to demonstrate the possibility of saving money (speculate to accumulate??) while at the same time improving the chance of being well prepared to fight a piece of litigation is a way to build long term relationships with her clients.

Millnet is increasingly talking to clients about strategies, project management workflows and in the end long term relationships on a contractual basis. A lawyer does not necessarily know what the long tem effects of a whiplash injury may be. An expert (a doctor) is instructed to advise. A lawyer goes to other experts for advice, engineers, Quantity surveyors, the Bar. Litigation Support providers are no different. Why not treat them as experts? After all, many of them are extremely proficient and expert in their field! Many of them will have had experience of more cases and how you solve the problems they throw up than the lawyers instructing them.

Act now! Make the call! You may be pleasantly surprised.

[Charles can be contacted on 020-7422-8800 and more details of Millnet’s Smart e-Discovery services can be found at]