Predicting a green future

By | 22nd March 2012

The last few weeks in the e-disclosure blogosphere have been dominated by news of and reactions to the various pronouncements in the US on predictive coding.

Led by Judge Peck, we have become used to almost daily updates in relation to the Da Silva Moore case  where we currently have something of an impasse as the Plaintiffs have been given leave by Judge Carter to appeal aspects of the Peck decision. Time will tell whether they are successful and whether this advances their case let alone making it easier for practitioners to feel more comfortable with the concept of Easy Button Review as it was recently described.

In the circumstances, it may prove to be sensible to defer further comment until we know the outcome of the appeal. I am also looking forward to the decision of US Magistrate Judge Nan Nolan of the US District Court for the Northern District of Illinois in the case of Kleen Products LLC v Packaging Corporation of America, where the plaintiffs are asking the court to order the defendants to use predictive coding or as they called it, using yet another name for basically the same thing, content based advanced analytics or CBAA. The outcome of that case will be fascinating not least because of the way in which the plaintiffs categorised the defendants’ election of keyword searching as “choosing a horse as a mode of transportation . . . because it is the best available horse, even though technology has evolved and a superior form of transportation—the automobile—is now available.”

Before the defendants seek a right of reply in these pages, let us turn our attention speedily to the environmental impact of litigation! 

The London Evening Standard carried a headline on March 19th 2012 declaring that what the reporter called the “days of dusty law books and yellowing court documents” could soon be over. The article was entitled End of paper trial: technology saves 5m pages in court case and referred to the cloud computing technology Magnum-Cloud, developed by London based Opus 2 International , used by the parties in the recently concluded Berezovsky/Abramovich trial presided over by Mrs Justice Gloster or Whizzie Lizzie as she is known to readers of this blog [Whizzie Lizzie and the Commercial Court, 7th September, 2010].

According to Opus 2’s website “Magnum is a secure web-based service which allows your team to access, annotate and collaborate on any legal content. Transcripts and documents, including hyperlinked pleadings/witness statements/skeleton arguments, web research or entire trial bundles are securely hosted within a simple interface which allows users to annotate and easily share comments with team members (barristers, solicitors, experts).”

The Evening Standard claimed that a lawyer in the Arctic Circle with a laptop, security code and an internet connection could not only follow the proceedings in the High Court but could also pass notes electronically to a QC in the middle of cross examination. Truly, we have come a long way from the days of Rumpole!

The trial bundle was said to cost £30,000 per set to produce and according to Addleshaw Goddard consisted of 280 A4 volumes, see Magnum cloud technology in the Berezovsky v Abramovich litigation.

Which brings me neatly to an article in Court Technology Bulletin dated February 16th 2012:  Calculating an e-court return on investment.

A court in Manatee, Florida has calculated the cost of the return on investment of moving from a paper based to an electronic based organization. You can read the full article for yourself but in the context of saving money with which I started out this piece, I was struck by the work of one Jennifer Berg, Sustainable Practice Leader at Northgate Environmental regarding the green impact of the mandatory use of electronic filing in the San Francisco Superior Court.

She notes on page 14 of her report:

“The Court’s main impact on natural resources is the vast amount of paper that is used in the legal process. This impacts the use of timber, electricity, GHG in the form of transportation and production, and the end of life when the paper finds its way to landfill. If electronic filing of documents was mandated, the use of paper would diminish immensely, thereby correspondingly reducing the impact throughout the value chains.”

Based on her estimates of 12,533 non-family or probate related civil cases filed during FY 2007-08:

  • An estimated 123 tons of paper are used for these civil cases each year
  • 455 tons of wood were used to create the paper
  • 3,677 million BTU’s of energy were used in paper production
  • And 723,502 lbs of CO2 equivalent were produced

 (The environmental impact estimates were made using Environmental Paper Network’s  Paper Calculator)

In addition Ms. Berg estimated more than 250,000 trips were needed to transport the paper resulting in approximately 5.4 million miles traveled or 2,400 tons of CO2 emissions.

In other words, the energy used for just 12,500 cases was the equivalent of 199 homes for one year; multiplied by the more than 1.5 million civil matters filed each year in California, these paper documents represent a significant burden on the environment.”

The advantages of working electronically are clear to all. Whether you accept Jennifer’s statistics or prefer to ignore them, it seems incontrovertible that we should be looking at ways in which both paper (and CO2 emissions) and money can be saved in the conduct of litigation.