Documents, Disclosure and Direction

A draft Practice Direction has been the cause of much excitement in the course of recent weeks. While there has been a call for guidance on electronic exchange for some time, support seemed lukewarm – the word was that the draft was to impose a series of requirements on the disclosure of documents in cases of substance and that “Australian rules” were to be implemented in a hurry. Groups with an interest in litigation or litigation support have been involved in examining drafts and compiling comments but seemed less than sure about the status of the draft and the chances of bending it to their advantage. Suppliers felt out of the loop and that they had a valuable contribution to make. I asked to speak to Sandra Potter, who is the main mover in this initiative and she explained her objective and the current situation.

Personal Involvement

It is hard to describe Sandra Potter; given her many varied roles I can offer no more than examples. Sandra is a Director of the 3C Consulting Group (www.3ccg.com); she is Registrar (ie CEO) at the Sir Zelman Cowan Centre for Continuing Legal Education at the University of Victoria; she is a committee member of the Victorian SCL and chairs its Practice and Procedures Focus Group; she was technology adviser to the former Chief Justice in Victoria; she has been published extensively in industry publications internationally and presents lectures and seminars on litigation support and documentation support. Most relevantly for this purpose, she is also an internationally recognised expert on court technology systems, having been much involved in setting up the first electronic court in Victoria and being now engaged as a consultant on the implementation of court systems abroad. Sandra’s in-depth knowledge of the legal profession and its unique workplace culture is the result of a 20-year career working with law firms and courts throughout Australia. Apart from knowledge management and litigation support, her specialist areas of expertise include process re-engineering, change management, project management and risk management.

Sandra Potter’s latest involvement in court technology in England and Wales arose from a series of meetings in November 2003. In the course of her visit to London, when London Group members had the benefit of her insights at a seminar on Effective Use of Technology in Civil Litigation Matters, she met with a group of senior judges. After explaining the moves made in Victoria to encourage the greater use of IT in court and the practice note that applies there, she responded to the usual enquiry (“Why can’t we do that over here”) with action rather than mere encouragement. It does not take long in a conversation with Sandra Potter to establish that she is a “can-do” person – her reaction to the problem was that there was nothing to stop the English courts from adopting similar rules and that she would produce a draft to assist the judges. Working without payment and with the blessing of her Chief Justice, that is precisely what she has done. The draft which has been produced is not truly “owned” by anyone but her, although the level of judicial support, especially from Lord Justice Brooke, means that it could be very rapidly transformed into an official document.

The Direction

The draft Practice Direction aims to “provide a court-approved framework to facilitate and support the use of information technology in the conduct of civil litigation in the court”. It covers the electronic exchange of court documents between parties and the court, the electronic exchange of disclosure lists, data and images and technology for court hearings. It is firmly rooted in the similar document prepared for the Victorian courts which is now mirrored in federal and state courts in Australia. After preparing a basic draft, Sandra took advice on the bodies which might have views and comments and consulted with the Bar Council, the Law Society, the Commercial Bar Association and more acronyms than I can list (but including SCL, the DCA, LiST, LITIG, the CLF and TECSA). The draft is in its fourth or fifth incarnation already (and by the time you read this, another version may well have emerged), having been amended to take account of the views and comments expressed. Sandra has held a series of meetings with the consulted organisations on her latest visit, including a four-hour marathon meeting on principles and technicalities with LiST and is now working with a series of representatives who have formed a working group – for example, Clive Freedman is currently working on drafting parts which more readily complement the situation in this jurisdiction. I had expressed some concern about the consultation process but I confess that I was entirely persuaded that the process had been as thorough as anyone could reasonably expect and that keeping a tight rein on the publication of responses was likely to be the best way to get something through within a reasonable time-frame.

Views and Objectives

Sandra holds firmly to the view that complex technology can cloud the real issues. She feels that what makes technology work to everyone’s advantage is adopting a procedure which allows for good practice rather than attempting to prescribe good practice – in her view “process is more important than technology”. Her aim is to produce “a basic and easy document”, allowing for more complicated later versions (“if you must”) at some time in the future once the basic form has seen some action. It is a case says Sandra of “crawling, before walking before running”. Sandra is at pains to emphasise that this is not a document that is going to make the representatives of parties to litigation do anything which is not sensible – if a sensible solution can be agreed between parties, whether by reference to their preferred practice or by reference to a privately agreed protocol to which they subscribe but quite at odds with the court default, then the Practice Direction will have done its job. The court default is not an attempt to require that all cases involving that number of documents must adopt the court default, or even any means of electronic disclosure at all. Moreover the court default is akin to a lowest common denominator – “it is not meant to be attractive”. If the prospect of turning documents into single page TIFFs in accordance with one element of the court default horrifies you then Sandra will be not in the least surprised and will expect you to go away and agree a less frightening alternative. Whether that horror will sometimes be used as a weapon remains to be seen.

My own concerns centred on the danger that only the technically minded were having an input and that the majority of litigators, especially perhaps those in substantial practices who had not yet moved towards the acquisition of litigation support systems, would not see how profoundly they were to be affected, and disadvantaged. Sandra’s reaction was passionate, revealing a commitment to justice for all and the considerable thought which had been directed to that very problem. Not only does she feel that the basic protocol leans towards basic systems, so that Excel can be used in the absence of anything better, but it is of course open to smaller firms to agree not to deal electronically at all or merely to swop documents in their native form. Moreover Sandra has a marketing plan in place in which the Law Society would take an active role in the education of solicitors throughout the country so as to help them understand and cope with the expected increased use of IT in litigation. In any case, I could scarcely argue with the point which is central to the entire initiative: clients will not stand idly by and watch electronic documents being converted to paper at huge cost. In short, if you are serious about litigation in the 21^st century you need to learn to cope with the technology that drives commercial life and produces the mountains of paper that you are busy arguing about.

The objective now is to get a final draft ready for submission to Lord Justice Dyson, together with a letter giving a flavour of the views expressed and any endorsements by significant groups. Sandra accepts that it is not possible for this draft to give everyone what they want but is confident that a workable draft which is acceptable to all can be completed by the end of March. The latest version of the draft is available by clicking here.

Summing Up

As I have said, one driver for Sandra Potter is that it is blinkered madness to see electronic versions of documents converted to paper and copied and recopied at great cost. But she expresses a more sophisticated aim most succinctly: “the point is to turn technology from a weapon into a tool – to change the balance and make th fight about the law again not the technology”.

From Jonathan Maas, who is a founding member of LiST, the Litigation Support Technology Group, and who leads Simmons & Simmons’ litigation support function and edits their award-winning online legal resource, elexica

LiST formed a working group specifically to respond to, and work with, Sandra’s initiative. We had already formed a separate working group to concentrate on the exchange of electronic data. That working group is nearly ready to issue for consultation (through SCL and other bodies) a protocol governing data exchange, usable by the litigant in person as well as the technically sophisticated law firm. We very much hope that the final protocol will underpin the PD and we have been working with Sandra to that end as well. Comments on the protocol from suppliers and others will be very much welcomed once it is released. This protocol will, as far as we are aware, be the first of its kind in the world and will create a much needed “Esperanto” for data exchange, thereby greatly reducing litigation costs. It is intended that all member organisations of LiST will adhere to the protocol in any event.

I genuinely welcome this initiative but all at LiST are very keen to ensure that what is put in place is something that we can work with. A protocol is needed to underpin what is proposed, whether the LiST protocol or otherwise.

From Clive Freedman, Barrister and Registered Mediator

Modern technology has greatly increased the amount of written material which has to be considered in a dispute. It is essential that we make more use of that technology to make the management of litigation more efficient. The proposed Practice Direction should help to achieve that.

From Richard Brockbank, Oxford Law and Computing Ltd

We think Sandra is doing an excellent job. Nobody else has made much impact on this over the last 10 years or so. Our main concern is whether the proposed default protocol is over-influenced by the current technical approach of the larger firms. Might it incidentally help them to ‘justify’ the costs they incur doing things their way, even if there might be a simpler and lower cost default, especially for the disclosure stage?

And following from that – what will current non-participant firms make of it all – it must be made easy for them to comply from day 1. As a supplier, our concern is that there are some new Practice Directions, sooner rather than later, and that the directions are simple, easy to implement and will not to make things too complicated for the uninitiated. As Sandra says, let the bulk of court users learn to crawl first!

We would argue that the default should be much simpler – exchange documents in their native format (i.e paper as paper, electronic documents in the form in which they are held – e.g. e-mails and documents as their native electronic files).