Brad Mixner of Litigation Edge Pte Ltd and Global EDD Group has been keeping the official conference blog which you will find here, reproducing my posts as well as writing his own, with some photographs in addition (the rest of us were banned from taking photographs, as I have noted before, and the one here of Lord Justice Jackson and Vince Neicho of Allen & Overy is taken with thanks from the official blog).

International Conference on E-Litigation 2011

As you will have gathered from my earlier posts, the conference was not just about electronic discovery but about case management and the whole court-led end of the litigation process. A recurring theme in my posts about the event is that the court really does lead here in relation to the rules, the development of court processes and the wider economic implications for Singapore of becoming the leading jurisdiction in the region.

I took part in a panel called Electronic Discovery Law and Practice in Singapore, US & UK led by Senior Assistant Registrar Yeong Zee Kin of the Supreme Court of Singapore, in company with Indranee Rajah, SC of Drew & Napier LL, Tan Hee Joek of Tan See Swan & Co and Brad Mixner. The mixture of a judge, local lawyers, a services provider and me allowed us to look at a range of topics from different angles, quite apart from the involvement of three different jurisdictions. Brad Mixner’s blog includes a photograph of us which I reproduce here with thanks.

Electronic Discovery Law and Practice in Singapore, US & UK Panel

Running in parallel with that was a panel called Electronic Discovery – What Corporate Counsel Need to be Aware of which was moderated by Bryan Ghows of UniLegal LLC and included Vince Neicho of Allen & Overy.

There was one session which was not about the litigation process. English barrister Stephen Mason, editor of the LexisNexis book Electronic Evidence, spoke on international developments in electronic evidence. Stephen was, as always, simultaneously learned and entertaining on a subject which is pervasive in its reach, chilling in its implications and trans-jurisdictional in its nature. He reminded us in opening that English solicitors or barristers can pass through all the stages of training and find themselves advising a client without having any knowledge whatsoever of the law of electronic evidence. The same, of course, is true of electronic discovery / disclosure, even in the US. One wonders when law schools and those who define the entry qualifications will start to focus on the real world and on the legal and business skills needed to give advice in it.

Reprinted with permission of the E-Disclosure Information Project

QX: In your experience, how has the landscape for electronic evidence changed over the years?

It has been an evolutionary process.  With advent of technology, electronic evidence has been transformed over the last 10 years.  Emails were not designed to be used as evidence in court but rather they were designed to serve as instant messages. Now, courts must rely increasingly on electronic evidence, emails, text messaging, and other documents.

QX: What do you see as the greatest challenges in the adoption of e-discovery by lawyers in Singapore?

The great challenges for the adoption of e-discovery in Singapore are cost and the need for a mindset shift.  Attorneys must always be mindful of the cost benefit analysis of applying e-discovery to a case as well as the overall value that it may represent to the client.

QX: How did Drew & Napier overcome or intend to overcome the challenges? 

We have taken a top down approach to the adoption of e-discovery within our firm.  Mr. Davinder Singh, CEO, “walks the talk” and has made technology a top priority for Drew & Napier.  Not only have we embraced technology within the management of the firm but we have become technology advocates with our clients.

Notable Points:

• Technology is here to stay; everyone in the legal profession must embrace it.
• We must take an “all hands on deck approach” regarding the application of technology with courts, attorneys, and clients working together to maintain the growth of the system.
• Legislation should be enacted to address client concerns about confidentiality and document security.

We started being impressed before the first speaker had opened his mouth. A large room is packed with rows of seats, with judges and other VIP speakers and guests at the front and the rest behind. So far as I could see, every seat was taken. The organisers are courteous but firm, imposing a degree of discipline which keeps us in our place. The rules include a ban on photography, so my posts will be missing their usual illustrations.

The proceedings were opened by the Honourable Justice Lee Sieu Kin, a judge of the Singapore Supreme Court and chairman of the conference, who told us that we had over 350 guests and speakers from 36 countries. The original plan, he said, had been to focus on electronic discovery, but it had become clear that other related technology developments, including the use of social media, warranted places in the agenda. He introduced the Honourable Chief Justice Chan Sek Keong, President of the Singapore Academy of Law, to give the opening address.

It became clear very quickly that the Chief Justice was no mere figurehead speaker at a legal technology conference. The challenge of dealing with electronic documents was a problem in all common law jurisdictions, he said, but Singapore had taken the view that discovery was only one part of the litigation process which must be grasped to ensure that access to justice was not hindered by excessive cost. That, as the conference chairman had said, warranted the extension of the subject-matter into the management of litigation generally

Electronic filing, he said, was now common in many jurisdictions, but was not necessarily justified in small jurisdictions, especially when Singapore embarked on it in the late ’90s. Singapore aspired to be an international business hub, and a decision was taken to concentrate on clearing the courts’ backlog. Singapore had always adopted a practical approach, with nothing being done for its own sake but only because time and effort could be saved as a result. Studies were made of the best practices in all jurisdictions to identify the best way of providing research, the management of cases and convenient access to the court process by electronic means without sacrificing justice to speed and efficiency.

There was, the Chief Justice said, an innate resistance to change on the part of the legal profession but the lawyers found that resistance was futile in the face of the courts’ determination to provide the world’s first nationwide paperless system with facilities for electronic filing, service of documents etc. The court and the Singapore Academy of Law had produced LawNet which, in addition to the electronic filing system, includes Legal Workbench for legal research and Due Diligence for up-to-date searches for litigation-related information from the courts and elsewhere.

Work is in hand on further electronic processing and on the use of electronic forms to generate court orders. There are developments also on the better use of technology in the courts, with paperless hearings in the Court of Appeal and trials of a voice recognition facility. A website has been developed to spread awareness of all these developments.

The lawyers and courts did not have much experience of electronic discovery to draw on but had studied the experience of other jurisdictions and produced Practice Direction 3/2009 to provide an opt-in framework for the management of electronic documents. It is not enough to enhance the procedures alone. Singapore law still requiredPeruvian Guano train of enquiry discovery which was not seen as efficient in the modern environment despite the fact that Singapore had not had cases as big as those in the US, Australia and the UK. The New York Times article Armies of Expensive Lawyers Replaced by Cheaper Software had been read as closely in Singapore as elsewhere [My article King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy addressed the arguments raised in that article]

Amongst the lessons learnt from larger jurisdictions was the growing idea that you could not find all the documents when justice, the fair disposal of the matter and the saving of costs was taken into account. Master Whitaker was to return to this subject in his speech later.

The Chief Justice had instructed the institution of what he called a root and branch review, of which the 2009 practice direction was part. More can be done, he said, to increase expertise but the legal profession will take too long if the task is left to market forces. Singapore needed to benefit from the new industry specialists in forensics and eDiscovery support, he said, if the Singapore courts were to expand and to develop expertise in, for example, cross-border disputes. It was, he said, a “lofty goal” that he had set.

A technology and skills programme was being established which, it was hoped, would be distributed cost-effectively via LawNet and the cloud. The “cadre of stalwart paralegals” needed upgraded skills as well as the lawyers.

One focus was on the interaction between lawyers and their clients – the clients conducted all their business electronically but then the lawyers printed everything out. Lawyers must be encouraged to design an electronic workflow even before litigation or an arbitration commenced, with the court encouraging them to retain documents in digital form. Such a venture must necessarily involve the private sector with early adopters being given incentives to participate.

The Chief Justice ended by launching a new LawNet iPad app with much the same style as Steve Jobs launched the iPad itself.

It is easy to say that such reforms are less of a challenge in a small jurisdiction. It is probable that Singapore can wield more resources relative to case volumes than can be done in bigger jurisdictions. The fact is, however, that Singapore started this program a long time ago, and did so with the twin incentives of maintaining justice and capitalising on a growing services sector – the latest Singapore GDP figures show manufacturing down but services up, and it is instructive to compare the Singapore courts’ central role with the rather wet efforts made by the UK’s Ministry of Justice to promote the export potential of our legal services. The UK has its centre of excellence in the Commercial Court, a fine new building to house it and the other specialist courts, and one or two other standout projects aimed at the higher end of the litigation market. What impresses about Singapore is that the big initiatives aimed at the aspiration to be an international business hub had gone hand in hand with attention to the requirements of justice across the broader and more local needs of litigants – things badly neglected in the UK. [See my article UK Government bids for a world-class legal reputation whilst neglecting the basics back home]

We were to hear next from Lord Justice Jackson who brought us up to date with what is happening in England and Wales. The initiatives are many and various and, if successful, will give us a lead in some important aspects of court-led provision of civil justice, but they depend rather too much for my liking on the efforts of a few individuals (like Sir Rupert Jackson himself) and groups, in contrast to the integrated approach adopted in Singapore. By “integrated”, I mean that everything from Singapore’s economic ambitions in its region down to access to individual justice is treated as part of a single endeavour; we, meanwhile, close down county courts whilst publishing vapid papers to comply with the Chancellor’s demand for anything with the word “growth” in it.

Notwithstandng this, the UK’s contribution to the morning’s learning was substantial. What we heard from Singapore’s Chief Justice, however, emphasises something I say often: every common law jurisdiction has something to learn from the others, and conferences like this provide a great forum for sharing ideas.

Reprinted with permission from: The e-Disclosure Information Project

I do not usually rush out reports of speeches on the day of their delivery, preferring a more leisurely approach with reflective comment. This is a straight transposition from my notes, with little critical or or analytical thought applied.

The evidence in Aristotle’s day, Sir Rupert said, fell within a manageable compass. The instant communications now critical to business were not a boon in all respects. They remain in permanent form to be studied by those with the time and motive, subjected to a full and painstaking analysis by lawyers, and generating “prodigious and sometimes terrifying costs”.

We will hear, he said, that this expense can be mitigated by electronic means. It is true, sometimes, that close scrutiny by lawyers does yield dividends, as he heard in a recent case where huge sums spent on the analysis of metadata showed that certain crucial documents were created after the event, with a substantial impact on the outcome of the case. Very often, however, huge sums are spent to little benefit; incautious comments made by parties in emails may be good material for cross-examination but do not usually affect the outcome of the case.

The central question was how to manage discovery at proportionate cost and how to tailor it to the case. Sir Rupert paid tribute to Senior Master Whitaker’s work producing the  EDisclosure Practice Direction and Electronic Documents Questionnaire which, he said, is making a major contribution in dealing with electronic material. Lord Justice Jackson said that he is seeking to build on the practice direction by developing a rule known as the “menu option. The principle behind this is that we must move away from standard disclosure as the default option and make judges and parties undertake a more rigourous analysis of the issues before an order is made tailored to the requirements of justice.

The menu will include the following:

• an order dispensing with disclosure
• an order that a party disclose the documents on which it relies,
  and any specific disclosure it requires;
• an order for issue by issue disclosure on the material issues;
• an order that a party give standard disclosure;
• an order for disclosure which may (i) enable a party to advance his own case or to damage that of the other party or (ii) lead to a train of enquiry with either of those possible consequences;
• any other order in relation to disclosure that, having regard to the overriding objective, the court considers appropriate.

Sir Rupert said that he would liaise with Master Whitaker to mesh the final version of the menu option with the practice direction. The  intention is that it will come into force, with other things, in October 2012.

The “other things” are a general reform programme now in progress in England and Wales. His detailed terms of reference included a requirement to review procedures in other jurisdictions. In addition to this, he gathered data from judges, from insurers and from others with an interest in and knowledge of the litigation process. A consultation period allowed the “warring factions and vested interests” to make representations, and the report was published in January of last year.

The report identified 16 causes of high costs of litigation which, in summary, were as follows:

• Rules requiring time-consuming procedures to be followed
• Complexity in substantive law
• The costs rules
• Insufficient understanding by judges and lawyers of the law of costs or how costs should be calculated
• The fact that lawyers are paid by the time spent on a case rather than by their work-product
• The uncontrolled recoverability of hourly rates
• The preparation of witness statements and experts reports
• The perverse incentive provided by the costs-shifting rules
• Conditional fee arrangements
• The sheer volume of e-mails and the cost of disclosure
• No effective court control of pre-action costs e.g. of pre-action protocols
• Lack of active case management
• The fact that some cases which ought to settle do so too late or not at all
• Cumbersome costs assessments procedures
• Court fees set too high
• Civil courts under-resourced despite high court fees

It is a hopeless quest, Sir Rupert said, to try and legislate for every eventuality. The key, or one of them, lies in better training for judges and lawyers in relation to costs – they must learn to budget before the event, as lawyers are supposed to do vis-a-vis their own clients anyway. Some, he said, are good at this; others better at totting up the bill afterwards. The bar has taken “a lordly lack of interest” in the whole subject. It is no longer acceptable for the judiciary to distance itself from the subject of costs – they are good at assessing damages but need to develop the same skills in relation to costs.

To take one example, the costs of witness statements and expert evidence needs tougher case management. The Civil Procedure Rule Committee agrees with him on this, and this, like the menu option, is being held over until next year.

Proper case management requires greater judicial continuity. We need to move more towards docketing of cases as every other jurisdiction is doing – court administrators prefer the flexibility of the present system and judges like a varied diet, but the experience of docketing in Australia has been a positive one. It is being piloted in Leeds.

We also need more robust enforcement of time limits and court orders. Parties are too often let off the hook, and Sir Rupert has made recommendations which, again, have been accepted by the Rule Committee but postponed until October next year. He commended Singapore’s example in cutting through its backlog by tough enforcement

Similarly, he said he was impressed by the excellent Singapore court systems which he had seen, including the new integrated system which aimed to reduce the time taken to get a case through the court, including the lawyer time. He was urging our authorities to build a similar e-working system.

Some jurisdictions are affected by things which do not affect others – Singapore does not have conditional fee agreements and after-the-event insurance, for example.

In addition to draft rules, there were various pilots in hand such as the docketing pilot in Leeds already referred to. Another such was the idea of concurrent expert evidence, “hot-tubbing” is it was known, which is being piloted in Manchester. Hot-tubbing has proved successful in Australia and he is hopeful for the Manchester initiative.

He turned turn next to the problem that lawyers are paid by the hour and not by their work product. This is relatively easy to deal with in lower value cases which can be dealt with by fixed costs. This, he said, is not feasible in common law jurisdictions for high-value cases where the costs must be managed pre-emptively. The essence of the proposed approach is that, at an early stage, solicitors must prepare a budget for their own clients and share this with the court and with the other side. The court hears argument and may approve or modify the budget and and then seek to manage the case in line with the budget. Litigation, he said, is the only type of project conducted without a budget, yet litigation is no less undertaken for business reasons than, for example, construction projects.

Many lawyers, he said, had thrown up their hands in horror at this idea. The court users, however, think it a good idea and very much want to know what costs are likely to be incurred on their behalf.

A pilot has been running in Birmingham in the Mercantile Court and the Technology and Construction Court on a volunteer basis, that is, only where both parties agreed. Parties on both sides said that it was helpful to know both what costs they were likely to be awarded if they won and what they might have to pay the other party if they lost. In addition to the Birmingham pilot, costs management has been piloted in defamation cases in London, with a revised pilot due to start in October this year based on the Birmingham experience.

When his report came out, he said, the government of the day was kind enough to say that they would implement it. The new coalition government had more immediate priorities, such as the deficit, and he assumed that his labours would be wasted and that his work would gather dust. The new government did in fact read the report, and consultation followed, the government indicating that it intended to retain most of the recommendations. The bill had had two readings in the House of Commons and would then go to the Committee Stage before passing to the House of Lords. If approved, it was likely to come into effect in October 2012 at the same time as, and as a package with, the procedural reforms described above.

Singapore, Sir Rupert said, has achieved a judiciary-led series of reforms and a change of culture. He hoped that it would prove possible to achieve a similar change of culture in England and Wales.

Reprinted with permission from: The e-Disclosure Information Project

Electronic Discovery Law and Practice in Singapore, US & UK Panel

Chairman:
Mr Yeong Zee Kin (Supreme Court of Singapore) 

Panellists:
Ms Indranee Rajah, SC (Drew & Napier LLC)
Mr Tan Hee Joek (Tan See Swan & Co)
Mr Brad Mixner (Global EDD Group)
Mr Chris Dale

Electronic Discovery – What Corporate Counsel Need To Be Aware of | Panel

Chairman:
Mr Bryan Ghows (UniLegal LLC) 

Panellists: 
Mr Steven Liew (eBay Asia Pacific)
Mr Wan Kwong Weng (Mapletree Investments)
Mr Vince Neicho (Allen & Overy)
Mr Peter Moore (Deloitte Singapore)