A good letter
Justice MacMenamin said that, as a young barrister he was told by the best solicitor he ever met, that a good letter can steer an awful lot of matters away from court.
“If you go to court with a good letter, an awful lot of the issues that are troubling the court will be resolved by that letter,” he said at the launch of the e-discovery hub, at the Bar Council in Dublin 7 on 23 February.
Reasonable
A judge will always look at correspondence to see who is being reasonable, he said, and will apply the test of proportionality.
“If you seem to be making a good fist of identifying the issues, then the court is going to be much more sympathetic to you.
“If on the other hand, the pleadings are all broad, and you are defending every issue, then a judge is going to be influenced by that.”
Courts are always looking at context, dominant purpose, and privilege, he said.
He said that as a lawyer, he was troubled by how to assess which documents were relevant and which were not, bearing in mind the overarching duty of every barrister to the court.
50,000 documents
Mr Justice MacMenamin then referred to the O’Leary v Volkswagen judgment where some 50,000 documents were subject to discovery.
“The case came down to an assessment of no more than 20 documents,” he said.
“It’s a little bit of a warning to us all, that many, many cases, despite the multiplicity of documents, come down to an assessment of twenty highly-relevant documents – in that case an interpretation of the contract.
“Discovery is not an end in itself, it’s a means by which justice is obtained,” he observed.
Visibility of opportunities
The goal of the new discovery hub is to increase the accessibility and visibility of opportunities for new arrivals at the Bar.
It will also enhance solicitors’ access to the type and cost of counsel that they require and increase the precision of applications received for work.
Scope
The new platform will also enable practitioners to know the full terms and scope of any project beforehand, thus saving time.
The new technology requires those seeking discovery to outline the project, in effect, along with the fees which will be paid.
This hub creates clarity around the process of hiring for discovery projects and a level playing field that did not previously exist, the seminar heard.
Jonathan Flood, of e-discovery contractors Night Owl Global said that his firm hub will offer work in the price range of €30-35 per hour, through the e-discovery hub, depending on experience, and the scope of the project.
"Hourly rates for discovery vary depending on the length and complexity of the work involved," commented Anita Finucane, Chair of the Young Bar Committee.
“Members have documented hourly fees of €120 per hour in certain litigation.
“A lot depends on the level of legal expertise expected from the barrister engaged, the urgency of the project and the length of time to complete the work” Anita told Gazette.ie
Confidentiality
For confidentiality reasons, all work is done onsite and through secure email channels, Jonathan Flood explained.
A minimum of 25 hours per week is expected, between 8am and 6pm, to comply with project deadlines.
But Flood, who heads EU operations for global e-discovery firm Night Owl Global, warned that lawyers doing e-discovery should not to let their natural curiosity cause the job to stretch out for longer than necessary, by over-analysing documents.
Find the facts
Find the facts as quickly as possible and move on, he advised, saying potential users should assess documents and then “make good decisions quickly”.
Jonathan Flood explained that business arrangements are flexible, within reason.
'We try and be flexible, respecting that barristers may need to step out and take calls but we need to do an awful lot of documents per day. We can be transparent about those numbers and figures ahead of time,” Jonathan Flood said.
Flood said that after the economic crash, a lot of large and complex litigation took place in Ireland.
The Night Owl Global software allows for the collection and preservation of legally required information, whether from file server, laptop or a physical copy.
The software can then interrogate the data and run algorithms across it such that nine emails could potentially be reduced down to one, both de-duplicating and streamlining datasets.
‘De-duplication’
“Our software finds text duplicated in discovery documents and batch removes them,” he explained, saying that data sets can be reduced by between 70-80%, in some cases, through the use of analytics.
Other proprietary software can do audio, visual and image searches, the seminar heard, as well as redacting images which are not relevant.
Flood said there is a huge inter-disciplinary career path emerging, at the intersection of law and technology.
Privilege is a crucial element in the discovery process, Sinead Drinan BL told the seminar.
Understanding
In particular, a proper understanding of legal professional privilege, in its different permutations, allows for candid and frank conversations between clients and solicitors.
Legal professional privilege should be understood as separating into legal advice, legal assistance and litigation privilege, she said, depending on the situation.
For instance, the ‘tracked changes’ on a MS Word document could be liable to discovery and non-lawyer documents may or may not be protected by litigation advice or legal advice privilege.
The seminar also heard that those subject to discovery orders should set out reasons why it would be burdensome, to stop it getting out of hand.