If the parties fail to agree on the handling of electronic sources of information as required by the Practice Direction to Part 31 CPR, the judge might impose his own ideas on them. The result may please neither side.
This article concerns a US case. Assume for the purposes of reading about it that the US “meet and confer” concept and the court’s powers to make discovery orders are similar in principle, if not in detail, to those given in our CPR.
There is little publicly available information about agreements or orders made in the UK courts pursuant to the Practice Direction to Part 31. By way of reminder, Paragraph 2A.2 requires that:
The parties should, prior to the first Case Management Conference, discuss any issues that may arise regarding searches for and the preservation of electronic documents. This may involve the parties providing information about the categories of electronic documents within their control, the computer systems, electronic devices and media on which any relevant documents may be held, the storage systems maintained by the parties and their document retention policies. In the case of difficulty or disagreement, the matter should be referred to a judge for directions at the earliest practical date, if possible at the first Case Management Conference.
I suspect that most orders which result are based on an agreement made in advance by the parties. It must increasingly become the case that parties either try and reach agreement and fail, or turn up to the CMC with the question not having been addressed at all. In either event, the judge is at liberty to make his own directions. The parties may be less than thrilled by the outcome. The US experience is a pointer to what will happen here.
I am indebted, as I have been before, to Rob Robinson’s EDD Blog Online, for a pointer to an article called Understanding the consequences of an unsuccessful meet and confer by Conrad Jacoby, published on 27 August 2007. It concerns a US case, Williams v. Taser International. Although the case predates the formal “meet and confer” obligations of the Amendments to the Federal Rules of Civil Procedure (FRCP), the article has much to offer to anyone about to take part in a CMC where electronic source of information are involved – and which case is not, these days?
When I say “anyone”, I mean those who feel strong on their ground and want power to their elbow, as well as those who hope the question will not hit them before they retire. I also mean to include the judges, some of whom are watching what happens in the US.
You can read the article for yourself, but some snippets may whet your appetite. The parties had failed to shift from their entrenched positions over the scope of discovery and the judge found their (very different) proposals deficient. The key sentence is “Rather than permit the litigants to further bicker over these issues, the Court imposed a fairly sophisticated (though well-tested) protocol to settle the dispute”.
The article emphasises that judges are increasingly willing and able to impose their own ideas as to what is best for the conduct of the litigation. In fact, the ability is of less significance than the willingness: what is worse from the litigants’ perspective – an order made by a judge who has strong views and knows what he is talking about, or one made by a judge whose strong views are not backed by relevant knowledge? Neither is necessarily attractive.
The sensible course is to reach agreements about electronic sources of information before the judge gets to see it at all. A compromise between opposing views may well be better for both parties than a solution imposed on both of them.
This goes to more than the practicalities of running the disclosure exercise. As the article puts it:
“By taking too aggressive a stance with respect to electronic discovery issues, Taser suffered a significant strategic setback. Moreover, in its role as a producing party of discovery materials, Taser also lost credibility – a non-renewable resource – in the eyes of the judge scheduled to try the case. Had Taser taken a more flexible approach in its negotiations with opposing counsel, it is possible that none of these issues would ever have risen to the level of judicial notice”.
See the article Why do we need a Data Exchange Protocol? and the pages linked from it on my web site to learn about the development of protocols such as were referred to in the Taser case. The lead in the UK is taken by the LiST Group.
If you would like to discuss any points arising from this article, or need help with this aspect of a forthcoming CMC, please contact me.