What were almost side-issues in Malletier v Dooney & Bourke, Inc are worth noting when considering the UK Part 31 CPR obligation to discuss ESI issues
I have a double interest at the moment in the scope of the English court rules about the obligation to “discuss any issues that may arise regarding searches for and the preservation of electronic documents” which arises in the Practice Direction to Part 31 CPR.
One is that I am writing a series of commentaries based on a long article which appeared in Computers & Law, the magazine of the UK Society for Computers & Law. The article was called Needles and Haystacks and concerned a large discovery exercise which, by the authors’ account, fell somewhat short of the ideal. My commentaries begin here. One of my interim observations is that the parties did not (judged by the article anyway) appear to have had much in the way of anticipatory discussion as envisaged by the Practice Direction to Part 31 CPR.
The other interest derives from the fact that I have been asked to outline a training course which covers the unfulfilled potential of the present CPR obligations, and to consider what, if any, further rules changes might be put forward for consideration. My view on the latter (see What can the CPR learn from the FRCP?) is that we should wait a while and see what comes out of the US, whose new rules have only been in place since 1 December 2006 (ours are older, but have been less tested – thus the training course).
I came across a reference to Malletier v. Dooney & Bourke, Inc., 2006 WL 3851151 (S.D.N.Y. Dec. 22, 2006) on a site called edd blog online. The links do not, alas, work from that post to the full case report but since time is short and the commentary apparently authoritative, I will use it as my source. I am not here concerned with the substance of the case (a trademark infringement claim about handbags), nor, indeed, with the main point of the application (the plaintiffs’ demand for sanctions for the defendants’ alleged failure to preserve chat room comments) but with what was said along the way about the conduct of the discussions about electronic sources of information.
Since the judgment was handed down in December 2006, I imagine that the course of these discussion preceded the introduction of the ‘meet and confer’ obligations in the amendments to the FRCP which came into effect on 1 December 2006. The criticism faced by the plaintiff would presumably have been even stronger on the same facts now.
The plaintiff (who was the aggessor, as it were, in the spoliation claim) was criticised on two grounds which undermined the high ground from which, ideally, such claims are made. One was that they had not raised the matters with the defendants’ lawyers before involving the court. The other was that they had apparently known for many months of the alleged deficiencies and had raised no objection.
“The delay in raising this issue until shortly before the end of fact discovery speaks volumes about the plaintiff’s inability to demonstrate meaningful prejudice”, the court said.
We do not have the concept of spoliation as a free-standing ground of complaint in the UK. We do have costs penalties for conduct which is inconsistent with the overriding objective established in the opening paragraph of the CPR (but we don’t have a proper means of publicising adverse costs orders which is part of the problem).
We also have – as a matter of human nature as much as of law – the probability that the court will take against you if you call on its support to cane your opponent when your own house is not in order. That will not (or at least should not) operate to deny you a right given by law, but it makes sense to ensure that you are beyond criticism (obvious and avoidable criticism anyway) when you ask the court to punish the other side.
Various questions arise in respect of the UK obligation that “the parties should….discuss any issues” given in paragraph 2A.2 of the Practice Direction to Part 31 CPR. That “should” may raise some questions, since it is almost certainly meant to imply something less than “must” (not much less, I would say, but I am no jurist).
Litigants in the UK courts will begin to discover, I think, a closer focus on this obligation in Case Management Conferences. I don’t say this just because I have been asked to help promote it, but because electronic sources can no longer be ignored by any party, lawyer or judge.
Instead of quibbling over whether “should” means anything less than “must”, parties (and judges) should be taking it for granted that electronic sources exist and are likely to be the primary source of documentary evidence. If that is the case (it will not always be but the question has to be asked), then the parties must obviously discuss what they are and be willing to tell the judge what they have agreed about them or, as the case may be, to ask him for his guidance.
Whatever the outcome, a party who has tried to have discussions, has noted them and the reply (or lack of reply) and has identified his own sources will be in a stronger position at the CMC than one who did not.
Furthermore (and this is more than just a side-benefit), if he does at least know what documents he has, he will be better placed to know the strength of his own case than if he does not.
If you want to discuss anything arising from this article, or any aspect of giving or receving electronic disclosure / discovery, please do not hesitate to get in touch.