His Honour Judge Simon Brown QC of the Birmingham Mercantile Court went to New York last week to take part in a judicial panel on the subject of eDisclosure. The resulting debate should make audiences sit up on both sides of the Atlantic.
We are well used to US judges coming to London to tell us how discovery of documents is managed in US courts. We hear from them what works and what does not work, what problems they encounter, and what methods they are evolving to deal with them.
You might think it rather odd that we have to import foreign judicial talent to tell us about a concept we invented, but I have heard more US judges speak here on the subject than English ones. This year I have been involved in the planning of a few e-Disclosure conferences. The draft programmes usually contain a hopeful slot marked “Judges Panel”. A somewhat paradoxical reason given for the absence of judges willing to speak is that they see too much emphasis in the UK conference programmes on the 2006 Amendments to the US Federal Rules of Civil Procedure.
Let’s just recap on that: the only judges willing to speak on e-Disclosure are American ones who necessarily speak about the FRCP. English judges don’t come and speak because there is too much about the FRCP. The expression vicious circle comes to mind.
Senior Master Whitaker has, until recently, been the only English judge willing and able to talk knowledgably about the subject. Readers of these columns will know that Judge Brown spoke eloquently about the CPR powers to curb excessive and expensive disclosure at a conference in London in January. I wrote about it (see E-Disclosure – what does the court expect?) and the invitation to speak in New York followed.
Can there be ANY similarities in the approaches taken by English and American judges managing eDisclosure issues in cases? An exchange between Judge Brown and two US federal judges showed that English and American approaches can be quite similar when it comes to applying principles of proportionality to the management of eDiscovery within a particular case, but that the practice, and the scope of the resulting disclosure, can be very different.
The judges panel took place at the IQPC conference in NYC on eDiscovery for Financial Institutions on 28 February. The audience comprised about 90 attorneys representing Wall Street firms, major banks, insurers and other financial institutions. The two American federal judges were U.S. Magistrate Judge Andrew Peck of the Southern District of New York, and U.S. Magistrate Judge John Hughes of the District of New Jersey, two jurisdictions rich in major commercial litigation. The panel was moderated by Patrick Burke, Assistant General Counsel at Guidance Software, who also served as co-chair of the overall IQPC conference. Patrick and I have spent a lot of time talking about the similarities and differences between our respective jurisdictions, and this panel was the chance to get the decision-makers to do the same.
Each judge explained his approach to managing a case involving significant amounts of electronic documents and e-mails. While proportionality was a common criterion in deciding the scope of production required, the key difference between their approaches was the scope of evidence sought by each court. The UK court demands a narrow approach to e-Disclosure, requiring production ONLY of documents which advance or damage the case of the giver or another party. That already narrow band may be further refined by wide discretionary powers. The new Commercial Court Recommendations say in terms that the attack on disclosure must be “surgical”. Judge Brown expresses it in terms of focus on the issues – what is the case about, what issues really matter and which documents are needed for the court to arrive at the facts which underlie those issues?
US judges, on the other hand, follow rules which allow parties to demand electronic evidence of a broader scope, including documents which may lead to the discovery of relevant evidence. Judge Brown emphasised that under English rules, the former standard of “relevance” is too wide – “relevance is not relevant”, he said, in determining what should be disclosed.
My own experience of discussing the comparative merits of our respective systems is that I meet frank disbelief from US attorneys at our emphasis on narrowing the scope of disclosure. “What case law do you have on that?” they ask, understandably bewildered at the idea that disclosure can be at once surgical and thorough, and that there can be so much discretion without resulting appeals. They will, however, take from a judge what they will not necessarily accept from me, particularly from one as fired up on the subject as is Judge Brown.
The same, of course, is true of UK lawyers. If we are to make progress with curbing e-Disclosure in the UK courts, we need more judges to stand up and tell us about it. Even better, we need some robust decisions which will show parties that the courts are serious about limiting disclosure to the real issues.
A public debate between judges, such as was seen on Broadway last week, would serve one particularly valuable function for a UK audience. The US experience, as related by the stream of US judges over here, appears to serve more as an awful warning than a source of encouragement. Their message that e-disclosure is time-consuming and expensive obscures two very different points: one is that the documents exist whether you like it or not, and handling masses of documents is never going to be cheap; the other is that, however similar our rules may appear to be, the culture is very different.
The vastly expensive procedural battles in the US, and the resulting case law, have their roots in one key factor not touched on in the New York debate – the existence in the US of sanctions for discovery which can be alleged to be defective. We need to know about the FRCP Amendments, not least because of their implications for companies who litigate on both sides of the Atlantic. We need more, however, than their mere recital. We need a reprise in London of this lively discussion between judges from the two systems in order to point up the difference.
The next opportunity comes with the IQPC conference in London on 22-23 May when Judge Brown (and, we hope, other UK judges) meets US Magistrate Judge Waxse in a panel discussion. If they can be persuaded to argue keenly for the merits of their respective positions, the resulting debate should be worth any amount of mere recital.
Will we get 90 commercial and financial lawyers to attend, as happened in New York? I hope so, because although Judge Brown and Master Whitaker are apparently the only judges here willing to address public conferences, the Commercial Court judges said much the same to the Commercial Litigators Forum last week, as my report on that meeting shows (Commercial Court judges set out their case management intentions). We very much need that message to be carried directly to the commercial decision-makers whose decisions originate the litigation in the first place. After all, the Commercial Court Recommendations expressly emphasise the need – and the intention – to involve those decision-makers in the conduct of the case.