The evolution into forms of electronic disclosure in litigation has been acknowledged by the English High Court in the recent case of Pyrrho Investments Limited and another v MWB Property Limited and others [2016] EWHC 256 (Ch).
Predictive coding has been in operation in the United States for a number of years. It is a search technology that aims to help the review of extremely large quantities of documents that often exist in multi-million/billion pound litigation.
Often the number of documents to review in such cases can number into the millions. The technology allows lawyers familiar with the case to review a sample set of documents and then to provide keywords and themes which are entered into a predictive coding software program to allow it to predict the relevance of the remaining documents and narrow them accordingly for manual review.
This technology, although used this side of the pond, has not been officially sanctioned by the Courts. With Lord Justice Jackson's continued campaign to promote the proportionality of costs in litigation, now seems a ripe time to officially acknowledge a proven technology that reduces the need for time consuming and expensive 'per document' manual reviews of gargantuan volumes of disclosure.
In a serendipitous judgment, the Court decided in Pyrrho that the use of predictive coding could be used in this case - a case which contained 3.1 million documents to review. The Master considered US and Irish authorities and concluded that other jurisdictions had confirmed that predictive coding is appropriate and useful in certain cases and that it appeared as reliable as a full manual review (an argument adopted in defence but rejected by the Court).
Most importantly, the Master sang to Lord Justice Jackson's tune by announcing that predictive coding could indeed promote the proportionality of costs in large litigation by reducing the costs of disclosure reviews. The judgment will certainly be welcomed by junior lawyers who undertake such painstaking reviews!
Tuesday 29 November 2016
Monday 8 August 2016
A warning from the High Court regarding the adequacy of disclosure processes
In the recent case of Vilca and others v Xstrata Limited and another 2016 [EWHC] 1824 (QB) the adequacy of a law firm's disclosure process was placed under scrutiny by the High Court.
The Defendant's solicitors had failed to disclose a relevant email exchange as part of their standard e-disclosure process. When the Claimant's solicitors discovered this omission, they questioned the integrity of the Defendant solicitor's disclosure process. This led to an application to the High Court whereby the Claimant asked the Court to order that disclosure be 're-reviewed' by an independent law firm or barrister not connected to the proceedings.
Foskett J held that the failure to disclose the relevant email exchange had been an error which was nonetheless made in good faith. He therefore concluded that an independent re-review was unnecessary and not in the interests of proportionality.
What is of interest to litigators are the obiter comments Foskett J made in his judgment. In his analysis the judge pointed out that, although unprecedented, he would be prepared to order a re-review of a disclosure process, which would be undertaken by an independent law firm. He confirmed that such a re-review would be appropriate if a law firm had clearly failed in its duty to perform an adequate disclosure process.
This is a warning shot across the bows to all law firms that are involved in litigation, especially as obiter comments often morph into future ratio decidendi. Huge embarrassment awaits any law firm that is ordered by the Court to have its disclosure re-reviewed by another law firm. As such, law firms must regularly review their disclosure processes and carefully monitor and check all disclosure, especially if undertaken by juniors or paralegals.
This becomes more important with e-disclosure as the majority of modern documents are in soft copy. Firms should regularly review e-disclosure software and providers and keep abreast of technology in these areas so as to avoid any public embarrassment which may lead to lost revenue and clients.
The Defendant's solicitors had failed to disclose a relevant email exchange as part of their standard e-disclosure process. When the Claimant's solicitors discovered this omission, they questioned the integrity of the Defendant solicitor's disclosure process. This led to an application to the High Court whereby the Claimant asked the Court to order that disclosure be 're-reviewed' by an independent law firm or barrister not connected to the proceedings.
Foskett J held that the failure to disclose the relevant email exchange had been an error which was nonetheless made in good faith. He therefore concluded that an independent re-review was unnecessary and not in the interests of proportionality.
What is of interest to litigators are the obiter comments Foskett J made in his judgment. In his analysis the judge pointed out that, although unprecedented, he would be prepared to order a re-review of a disclosure process, which would be undertaken by an independent law firm. He confirmed that such a re-review would be appropriate if a law firm had clearly failed in its duty to perform an adequate disclosure process.
This is a warning shot across the bows to all law firms that are involved in litigation, especially as obiter comments often morph into future ratio decidendi. Huge embarrassment awaits any law firm that is ordered by the Court to have its disclosure re-reviewed by another law firm. As such, law firms must regularly review their disclosure processes and carefully monitor and check all disclosure, especially if undertaken by juniors or paralegals.
This becomes more important with e-disclosure as the majority of modern documents are in soft copy. Firms should regularly review e-disclosure software and providers and keep abreast of technology in these areas so as to avoid any public embarrassment which may lead to lost revenue and clients.
Monday 16 May 2016
Thursday 28 April 2016
“Views my own” disclaimer won’t protect disreputable company tweets
Check out my latest article in People Management Magazine entitled “Views my own”
disclaimer won’t protect disreputable company tweets -
http://www.cipd.co.uk/pm/peoplemanagement/b/weblog/archive/2016/04/22/views-my-own-disclaimer-won-t-protect-disreputable-company-tweets.aspxThursday 10 March 2016
Snooper’s Charter – is this the end of solicitor/client privilege?
Last week the Bar Council issued guidance to its members in relation to legal privilege and the Investigatory Powers Bill, which is to be debated in Parliament on 15 March 2016.
Legal privilege is the statutory protection afforded to all legal communications between a client and a lawyer which ensures they are kept confidential. It is not only a cornerstone of our legal system but a vital legal principle which serves to put clients at ease when communicating sensitive information to their lawyer, information which is often vital to the case in question, also forming an important part of the lawyer's armoury.
Controversially, The Investigatory Powers Bill (a.k.a the 'Snooper's Charter') will allow the security services to access personal communications data in the interests of national security. Internet service providers and phone companies will be legally obliged to keep all communications data on their customers for 1 year before deletion.
The Bar Council are concerned that legally privileged communications will not be adequately protected under the new Bill. They acknowledge that legally privileged communications should be accessible if in the interests of national security, for example to reveal the details of an imminent terror attack. However, as currently drafted they claim that the Government have not made a distinction between privileged and non-privileged communications despite appeals from the industry.
The Chairman of the Bar Council, Chantal-Aimee Doerries, has even petitioned the Government via an open letter in The Telegraph (with over 100 high-brow signatories) to re-consider the current draft and delay the Parliamentary debate in order to re-draft provisions such as those concerning privilege.
Technology experts at The Bar Council have also raised concerns that the new Bill, in conjunction with US surveillance laws such as the Patriot Act and Freedom Act, will allow US security services to access privileged information that is stored in a 'cloud' which servers are on US territory. The Bar Council has expressed concern about the knock-on effect this might have on companies doing business in the US and taking English of US legal advice.
Further pressure was exerted upon the Government this week when the UN's privacy chief, Joe Cannataci, claimed in a report that the Bill 'runs counter' to recent privacy judgments in Europe and undermines the right to privacy. He has also petitioned the Government to further scrutinise the Bill 'to identify proportionate measures which enhance security without being overly privacy-intrusive'.
Recent reports have stated that Home Secretary Teresa May has included various changes to the Bill in light of recent concerns, however, clearly some parties feel the government have not gone far enough.
The risk to legal privilege is certainly an issue that the legal industry as a whole should rally against. Without the safe harbour of legal privilege, clients will be reluctant to provide their lawyers with oftentimes crucial information, without which the risk of losing litigation is heightened or negotiating leverage lessened. A weakening of legal privilege may even usher in a future where an X-Files style exchange of brown paper envelopes on park benches between clients and lawyers becomes the norm rather than more modern preferred modes of data exchange! Ultimately, the bedrock of solicitor/client privilege must be preserved and no doubt the Bill be will be beefed up accordingly.
Legal privilege is the statutory protection afforded to all legal communications between a client and a lawyer which ensures they are kept confidential. It is not only a cornerstone of our legal system but a vital legal principle which serves to put clients at ease when communicating sensitive information to their lawyer, information which is often vital to the case in question, also forming an important part of the lawyer's armoury.
Controversially, The Investigatory Powers Bill (a.k.a the 'Snooper's Charter') will allow the security services to access personal communications data in the interests of national security. Internet service providers and phone companies will be legally obliged to keep all communications data on their customers for 1 year before deletion.
The Bar Council are concerned that legally privileged communications will not be adequately protected under the new Bill. They acknowledge that legally privileged communications should be accessible if in the interests of national security, for example to reveal the details of an imminent terror attack. However, as currently drafted they claim that the Government have not made a distinction between privileged and non-privileged communications despite appeals from the industry.
The Chairman of the Bar Council, Chantal-Aimee Doerries, has even petitioned the Government via an open letter in The Telegraph (with over 100 high-brow signatories) to re-consider the current draft and delay the Parliamentary debate in order to re-draft provisions such as those concerning privilege.
Technology experts at The Bar Council have also raised concerns that the new Bill, in conjunction with US surveillance laws such as the Patriot Act and Freedom Act, will allow US security services to access privileged information that is stored in a 'cloud' which servers are on US territory. The Bar Council has expressed concern about the knock-on effect this might have on companies doing business in the US and taking English of US legal advice.
Further pressure was exerted upon the Government this week when the UN's privacy chief, Joe Cannataci, claimed in a report that the Bill 'runs counter' to recent privacy judgments in Europe and undermines the right to privacy. He has also petitioned the Government to further scrutinise the Bill 'to identify proportionate measures which enhance security without being overly privacy-intrusive'.
Recent reports have stated that Home Secretary Teresa May has included various changes to the Bill in light of recent concerns, however, clearly some parties feel the government have not gone far enough.
The risk to legal privilege is certainly an issue that the legal industry as a whole should rally against. Without the safe harbour of legal privilege, clients will be reluctant to provide their lawyers with oftentimes crucial information, without which the risk of losing litigation is heightened or negotiating leverage lessened. A weakening of legal privilege may even usher in a future where an X-Files style exchange of brown paper envelopes on park benches between clients and lawyers becomes the norm rather than more modern preferred modes of data exchange! Ultimately, the bedrock of solicitor/client privilege must be preserved and no doubt the Bill be will be beefed up accordingly.
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