The April / May 2007 edition of the SCL’s Computers & Law Magazine includes an article by barristers Alex Charlton and Matthew Lavy, who tell of their experiences on the receiving end of a very large, and apparently undiscriminating, e-Disclosure exercise. The article can be accessed here by SCL members.
I was told of it whilst I was, with other e-Disclosure professionals, at a conference on Information Retention and E-Disclosure Management in May (I will come back to the relevance of this at the end). My informants thought the article negative and unhelpful to those keen to encourage the use of electronic Disclosure. Furthermore, they said, it referred to an article by me in terms which implied excessive enthusiasm on my part.
In fact the article is not negative about the potential – and indeed the necessity – of using technology for disclosure, nor does it suggest that there is anything misplaced in my enthusiasm for it. It is a sober, and certainly rather depressing, account of a particular case and what went wrong, at least from the perspective of the recipient of the large volumes of electronic documents. It acknowledges that the experience of the giver may be rather different. Technology, it says, has shifted the burden of Disclosure from the disclosing party (where the CPR puts it) to the receiving party, and they (rightly) disapprove.
The gist of the article is that it is the practice, not the rules or the technology per se, which cause the problem. It is, however, fair to say that a reader, whether he or she skims the article or reads each of its 5,653 words carefully, is likely to come away with the over-riding impression that e-Disclosure is an expensive game best left to others.
This impression is at odds with the message I sought to convey in the article of mine to which Charlton and Lavy refer. I welcome a different perspective. Selling commercial concepts is rather like politics – you need an opposition on which to sharpen your own message. Promoting technology is much the same. Repeated assertions that eDisclosure is a benefit (indeed a necessity) need to be challenged to find their focus. The article is not in fact such a challenge, but it may be read so by others and is therefore worth analysis.
The difference between Charlton and Lavy on the one hand and me on the other is no more than a difference of perspective, honed in their case by a bad experience. It does not really matter if their acceptance that eDisclosure is both a benefit and a necessity is derived from positive conviction (as it in fact seems to be) or resignation (as might appear from their overall tone). The fact is that it is no longer possible to give Disclosure in cases of any documentary substance by any other means.
So what did they say about my article?
“An article in the February/March issue of Computers & Law promoting the benefits of e-disclosure even for small and medium-sized cases suggests that it is likely to expand further. E-disclosure is here to stay, and with good reason. Handled responsibly, there is no reason why it should not deliver on its promise of promoting efficient, agile and less costly litigation.”
Those who see Charlton and Lavy’s article as negative about the concept must have missed this endorsement. The key words are “handled responsibly”. They do not feel that their opponents in the case which they discuss met this requirement and, on the facts which they give, I agree. They also suggest that the court could and should have taken a more robust line and, again, on the facts as given, I agree.
The Charlton and Lavy article covers a number of discrete areas which I propose to pick off separately. I do not argue with much that they say, nor would I presume to suggest that I can say any of it better than they said it. There is some value, however, in isolating the components of their saga and seeking out any positive lessons which emerge for cases large and small.
The most important lesson falls outside the scope of their article. I said in my introduction that I was at a conference on Information Retention and E-Disclosure Management when I first heard of the article. It seems to me that the disclosing party and its lawyers in the case which Charlton and Lavy describe should have been there too. A good document retention policy would have saved a great deal of the expense and trouble of the over-large Disclosure which they describe.
The second article based on points made by Alex Charlton and Matthew Lavy in their article E-Disclosure. Needles and Haystacks appears here.