US Magistrate Judge the Honorable Andrew Peck here makes his third appearance in this blog in as many days, following his appearances at the IQPC Information Retention and E-Disclosure Management conference last week.
There is a note about his reputation as one who moves cases along at a blinding pace in my post Guidance on benefits of e-Disclosure and there is a report of his attitude to pleas about EU privacy laws in Whose discovery rules would you rather break?. He also had some useful observations about the conduct of discovery in US courts which, although different in so many ways from our own (right down to having apparently different meanings of the word “proportionality”), nevertheless have enough in common for judicial commentary to travel well – in both directions.
One of the differences, he noted, was that producing parties bear their own production costs in the US except in those rare cases where a costs-shifting order is made. Costs-shifting – usually an order that the receiving party bears the costs of discovery of documents which he insists on having despite the producer’s argument that this would be disproportionately expensive – has not taken hold as was expected following the Zubulake case. A valid assertion that document sources are “not reasonably accessible” is one of the few express proportionality arguments available in US discovery disputes.
Costs-shifting arguments are not common here either, but that in part is because a court confronted by arguments over scope is likely to question whether it wants to be troubled with documents whose value is disputed so heavily as to warrant having the argument at all. Part of the court’s duty under the over-riding objective is to allot “an appropriate share of the court’s resources” to any case, and the fact that a party is willing to pay its own costs of disclosure does not necessarily outweigh that consideration (see the passage about this in Intimidation by Terabyte – scope of e-disclosure, which looks at Hands v Morrison.
Judge Peck referred in passing to sampling orders where there are arguments as to the value of any particular source. Such arguments depend on an assertion that the likely value of a source is not proportionate to the costs of extracting the data from it. We could do the same here, and perhaps should more often. Quite apart from the court’s wide discretionary powers, there is an express obligation (which is, of course, a valuable right as well as a burden) on parties to limit the search to sources which are worth looking at – see 31.7 CPR and Paragraphs 2 and 2A.2 of the Practice Direction to Part 31 CPR. The Commercial Court has an express reference to sampling orders, but if it is sensible there then it may well be a cost-effective option elsewhere – and not just for very big cases. If a little pre-disclosure investigation allows you to cut your disclosable documents from 1,000 down to 600, then that is as valuable pro rata as in much bigger cases.
The other element here is the availability of software and services to enable data to be sampled before incurring the costs of processing and review. The gist of the rules now is that you do not get too stuck into disclosure before the court has had the chance to have its say – “Automatic disclosure will not take place until after the CMC, which decides on the scope of disclosure” as the Commercial Court Recommendations put it at Paragraph 68a.
That does not, of course, mean that you wait until the CMC before starting to think about it. One of the things you might do – must do, in some cases – is to start finding out what it would cost to undertake exercises at varying levels of intensity. You cannot do that without an estimate, and you will only get that by ringing up a supplier and asking him. Sampling the sources will necessarily cost something, but it has the potential to save a great deal of money thereafter if the upshot is an agreed or ordered reduction in the quantity disclosed.
Another topic mentioned by Judge Peck is the assertions by lawyers that their chosen supplier and application will make a fine job of narrowing down the scope of disclosure. The way he put this (which I have used as my heading to this article) is “It works, Judge, trust us”.
This touches on a subject of concern to many on both sides of the judicial desk. How do I know that this technology will find everything? Patrick Oot, Director of E-Discovery and Senior Counsel at Verizon, was also on that panel. He is well-known for conducting comparative exercises in retrieval and has found an 85% correlation between the documents turned up by humans and those found by technology. That, of course, depends on what technology you have and how you use it – but the same applies to humans as well. “People are not infallible either” as Judge Peck put it.
The success of this as a route to justice (and justice is, or should be, what it is all about), Peck said, was co-operation. Counsel must talk to each other, he said, and give “good-faith explanations” as to their sophisticated tools and methods. They must say at an early stage “this is how I propose to do it”.
That applies in the UK as well. It runs counter to the culture to be so open at such an early stage, but the culture must change or litigation will truly become the preserve of the rich few. Paragraph 2.A2 of the Practice Direction to Part 31 makes this more than a nice idea – such discussions are compulsory.
My keyboard can almost do the next bit by itself by now. The costs of disclosure often march in step with the value of the claim. Where they do not, an attempt must be made to make them do so – that is what “proportionate” means. Whilst the Commercial Court and big cases are where the big money is to be saved, the principles apply, mutatis mutandis, to much smaller cases. If the conclusion in any one case is that the costs of handling documents electronically are not proportionate, then that is a perfectly proper conclusion – but you cannot reach that conclusion, or persuade the judge of it, without an investigation and an attempt at comparative costs of different routes.
Litigation often does not warrant electronic disclosure. Politicians often tell the truth. In both cases, however, the presumption is otherwise, and must be worked at.