The US courts are coming down heavily on inadequate Discovery of e-mail and other electronic sources of information, and accepting few excuses for non-compliance with the Rules. Events in a far away country of which we know little (as Chamberlain said of the German invasion of Czechoslovakia) or something to take note of in the UK?
The US Information Governance Engagement Area draws my attention to a white paper by InBoxer, Inc which draws together more than 50 US court rulings about email archiving and electronic disclosure under the amendments to the Federal Rules of Civil Procedure (FRCP). Together they show the courts’ increasing unwillingness to tolerate excuses offered by parties for Discovery which is incomplete, inaccurate or slow.
InBoxer, Inc supplies solutions to the problems of e-mail archiving and is not a disinterested spectator of the US Discovery scene. Nevertheless, their compilation will make US lawyers, litigants and would-be litigants think about litigation readiness.
The elements InBoxer identify include these:
- The courts are no longer tolerant of organizations that have not implemented timely programs accurately to retrieve email.
- Just implementing a policy for retention and litigation hold is not enough. Companies must prove they are enforced at all levels.
- The penalties for failing to meet the FRCP deadlines can be an order of magnitude larger than the costs of putting a system in place.
- Limited staff and resources are not excuses for missing deadlines, even for small organizations.
The rules and practice in the UK courts are more relaxed than in the US There are good reasons for this and good reasons also for keeping it that way, up to a point, at least. The scope of our Disclosure is narrower, at least for Standard Disclosure. We do not have sanctions (that is, cash penalties for spoliation or other defects). We do not have the statutory tight timetable laid down in the FRCP, including the obligation to “meet and confer” about electronic sources. We do not make Discovery (Disclosure in the UK) a battleground in the same way as happens in the US.
It would be wrong, however, to assume that UK courts lack teeth. I will not here recite again what I have said elsewhere about the requirements of the Practice Direction to Part 31 CPR – see my post Agree on Disclosure – or the judge will decide for you for an introduction to that, or type Part 31 into this site’s search box.
If you run your eye over the bulleted points above, you will see that the general tenor is that all organisations are expected to be ready for litigation whenever it may strike. The FRCP timetable does not allow room to defer thinking about your documents until the action starts. That is not the starting point for the UK courts, largely because we do not have the same tradition of suing for every slight – I exaggerate, and we are fast catching up in certain types of opportunistic claims, but it is nevertheless correct to say that we do not expect every organisation to be permanently on a war footing.
Our courts also have an obligation (as part of the overriding objective) to recognise that parties are of different sizes and have varying levels of resource – cases must be dealt with “in ways which are proportionate …. to the financial position of each party”. The approach which InBoxer reports from the US would offend this principle.
So what is a UK court to do when a party says that it has too many documents to be able to comply properly with its Disclosure obligations in a short time-scale? The US judge, if InBoxer is right, would say that was too bad, and either sanction the party or simply make his own order (see Agree on Disclosure – or the judge will decide for you) and expect it to be complied with.
Sanctions apart, I am not sure that the answer would be so very different here. The judge cannot hand out penalty fines for the historic state of a party’s document management, but he or she will expect a party’s reaction to be proportionate to its resources. That may require some investigation and perhaps (as is common in the US) some expert evidence as to what is involved in complying with the Disclosure obligations. Those obligations may be qualified by consideration of the overriding objective; there may be some pragmatic short-cuts agreed between the parties or imposed by the judge; the timescales may have to be adjusted where the burden is particularly onerous.
But ultimately, a party who uses the UK courts will be expected to give Disclosure in compliance with the rules and to do so in a timely manner having regard to all the factors outlined in the overriding objective. The future battleground, I think, will arise where a party discloses too much rather than too little, passing to the recipient the burden of finding the material which actually fits the definition of a disclosable document. Rule 31.6 provides that “Standard disclosure requires a party to disclose only” certain classes of documents and, as volumes increase, it is that word only which will matter. The remedy lies in costs rather than sanctions.
Whilst therefore, you may not be punished for not having had a document retention policy and a litigation readiness policy in place, the failure to have done so will not attract much sympathy from a judge whose job is to the get the case heard justly, cost-effectively, even-handedly and expeditiously.
The same applies to their solicitors. Litigation support systems come in all sizes and, as one judge put it to me recently “a firm which purports to provide a litigation service should be expected to have the tools to do it with”. Those tools, and the relevant skills, need only to be proportionate to the cases handled, but if those cases are document-heavy ones, then firms will be expected to be geared up to handle them. The clients will have that expectation as well.
If you want help on any aspect of this, please contact me.