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Comment: Best case scenario – the impact of the Jackson reforms

Drew Lewis, eDiscovery Counsel of Recommind sees the new rules as a stimulus to driving deep and meaningful changes in IT planning, both for corporate legal firms and the companies that use them.

Drew Lewis, eDiscovery Counsel of Recommind sees the new rules as a stimulus to driving deep and meaningful changes in IT planning, both for corporate legal firms and the companies that use them.

Opinions differ as to exactly who first said that ‘failing to plan is planning to fail’. Might have been Franklin, might have been Churchill. Maybe even someone else. We’ll all be pretty sure from here on in, however, that the Jackson reforms gave this truism some real super powers in the world of corporate legal. Disclosure is more about planning than it has ever been before and it doesn’t just affect legal practitioners. New disclosure rules place stringent demands on clients too, expecting them to be fully prepared at the first case management conference (CMC) on every aspect of disclosure; what they’re going to produce, how, and what the costs will be. Turning up at that meeting unprepared will be just like walking into the dock with no clothes on.

The Jackson reforms to the Civil Procedure Rules in England and Wales have kicked off this month and they require all parties involved to agree at the first CMC the method and approach to disclosure. They are required to consider a menu of disclosure options, from no disclosure, to disclosure by issue, to the wider disclosure invariably necessitated in fraud cases. They are also expected to produce fairly accurately estimated budgets for the process to make sure that cases are dealt with justly. In this respect, firms will be spending money that is proportionate to the objective of the litigation, narrowing the scope of what is expected from them, and respectively save them time and money.

Manual disclosure is no longer a viable option for law firms as they will find that costs will spiral out of control, and time constraints will leave them at a disadvantage at the CMC. It is vital that both the lawyers and the judiciary are educated about the different technologies that are available and how they can be used in the disclosure of information.

Enter intelligent technologies that leverage data from complex and mostly unstructured data sources. Legal firms and their corporate clients have to understand in real depth what the disclosure items are, or are likely to be, well ahead of time; certainly from the get-go of the legal process. Preparing never to fail will also trigger extensive diligence in all file management processes so that any key document, pivotal email, pertinent call transcript, or any one of dozens of other data sources (using ‘data’ in the true ‘big data’ sense of the word – any information about anything, held in any format, anywhere, and as far as possible…ever) can never, henceforth, get lost in the archives.

Lord Justice Jackson recognised that ineffective case and information management were the main causes of excessive costs. In order to reduce these cost so that they are proportionate to the case, Practice Direction 31B promotes the use of technology and states that the use of proposed keyword searches and other types of automated search should be discussed with a view to reducing the burden and cost of disclosure.

It is widely understood that those who use technology will have a stronger case when providing a budget that falls within the range of reasonable and proportionate costs. Those who do not use technology are more likely to produce a budget which falls outside of this range. This could lead them having to adhere to a set budget proposed at the CMC. Failure to do so would leave them at risk of not being able to recover costs.

Legal firms and their clients should recognise the new rules as an opportunity to refine some existing practices, such as storage and retrieval of relevant items for disclosure. Effective and diligent management of data, in any form, reduces costs, improves quality and results in a robust and defensible process. Mark Surguy, a partner at global law firm Eversheds, says: “The costs of disclosureowes a great deal to the data explosion and the consequent need to manage electronically stored information by working closely, from an early stage, with technology partners.  This approach assists hugely in estimating the disclosure costs effectively.  There are lots of helpful technology tools for measuring data and review speed which make the budgeting process considerably more precise than has been the case in the past.”

Technology assisted review is vital in reducing the costs of disclosure, and also ensuring a timely practice by which relevant documents are found. Some 70% of the cost of disclosure is said to arise from legal firms searching for information. It makes disclosure an expensive process. When as much of the disclosure process as possible is automated, however, it becomes easier to find what you’re looking for. Automation reduces the expense and speeds everything up so that lawyers can find what they need quicker than ever before.

Predictive coding, a form of technology assisted review and analysis, provides a unique ability to analyse, prioritise and code all documents in a collection as part of litigation or regulatory investigation. It invites the involvement of Senior Lawyers at a much earlier stage of disclosure, against the general rule that you apply Junior Lawyers to plough through documents before filtering them upwards; a timely and expensive process. Predictive coding technology does the first stage for you, and encourages input from Senior Lawyers or subject matter experts at the top of the process, enabling them to prioritise the most relevant documents at an earlier stage. This arms the lawyers with actionable information so they can focus on case strategy rather than focussing on finding their way round huge volumes of data.

However, courts in the UK are currently not open to Predictive Coding, whilst the US is taking the lead in the use of this technology. Due to the Jackson Reforms, it will only be a matter of time before the law firms and the judiciary realise that Predictive Coding will have a stronger case when providing a budget that falls within the range of reasonable and proportionate costs.

It is clear that technology, communication and the identification of relevant documents is going to be critical in litigation cases moving forwards. From preservation and collection, to early data and early case assessment, through review and analysis, an integrated approach to file management equips firms with the capabilities to meet the Jackson reform requirements and a lot more besides. With a strategic approach to electronic disclosure, legal departments and their law firms can find and analyse key documents faster, allowing them to make fully educated decisions from the very outset of an event, resulting in lower, more predictable costs and better outcomes. The result is a far deeper level of understanding from the start of the review process (successful planning) and a far more efficient, accurate and cost effective review (planning for success).

6 replies on “Comment: Best case scenario – the impact of the Jackson reforms”

An excellent article, right up to the point of “However, courts in the UK are currently not open to Predictive Coding”. Does Drew have any evidence to back up this particular statement?

My impression from both Senior Master Whitaker and His Honour Simon Brown is that the courts are very open to the use of predictive coding, and in fact expect that this will be the only way some budgets will be met. One could argue that the Goodale judgement from Master Whitaker pushes you down this route. If there is a technological pushback from the courts we need to know about it, but I think they will be open to the use of these tools.

I agree with Andrew Haslam. If anything, the courts of England and Wales are more open to the use of technology-assisted review than in the US – proportionality rules, we don’t have to look under every stone, we don’t have an abstract fear of large sanctions for oversight (which is not the same as saying we are lax), we don’t distrust opponents by default as they do in the US (though we keep an eye on them) and, above all, we don’t give a hoot what some other judge, in another court, in another case decided was right. Judges have discretion to do what is right; it is down to the lawyers to articulate that clearly.

Good point Andrew. But my point was more directed towards the lack of the written opinion blessing the use of the technology (the UK version of daSilva Moore if you will). I don’t think judicial acceptance is critical either (the market will largely dictate the adoption of this technology). So, while Judges such as Senior Master Whitaker & Judge Simon Brown have been encouraging the use of Predictive Coding in the UK for some time(here is a great video of Master Whitaker doing exactly that) and support in the market is widening, if one measures the approval of the technology by Judges purely through orders and opinions it suggests limited support from judges in the UK. However I believe education and greater awareness will lead Courts, Barristers & Lawyers to greater adoption of the technology. Coupled with the Jackson reform movement I think it is a matter of time for that court opinion which will unlock the gates to widespread adoption. Should be exciting to watch the evolution unfold!

What gives me most cause for concern is Young Mr Haslam’s assertion that the courts will regard the use of predictive coding as “the only way some budgets will be met”. I know what he means, but I am sick and tired of having someone unfamilar with the technology agree timetables with someone equally unfamiliar and me having to shoe-horn a massive project into the resultant tiny window. I’ll not now have someone doing it to my budgets as well!

All the more reason (as if it were needed) to have lawyer, client AND consultant all contributing in equal measure.

I think the collaborative approach Jonathan mentions is a key piece, and a point that I make when I discuss technology with people. Although achieving consensus can be a challenge, I firmly believe that collaboration produces a better overall outcome. All stakeholders need to be part of the process, and both sides in a litigation need to have someone that understands how technology works if a meaningful agreement is to be reached.

In defense of the inefficient US model. Proportionality requires a deep understanding of issues and potential outcomes that are rarely known at the outset of disclosure – especially true in a fraud investigation. The lack of adoption of “predictive coding” in the US has less to do with the courts, rather the inability of the vendor community (consultants included) to articulate an effective process aligned with the fact gathering objectives of the litigants. Leveraging technology to reduce cost is, in the case of a fraud investigation, not a compelling enough value proposition for the elite firms that typically do that kind of work. However, leveraging technology to more quickly and effectively identify facts and risks does resonate with that same audience. Greetings from NY Mr. Haslam

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