A US view on UK electronic disclosure

Although the conferences referred to here were both in London, they were not specifically about electronic disclosure in the UK. There was plenty, though, to interest those on both sides of the Atlantic, not least the possibility that part of our approach might be exportable

Jason Baron, the US National Archives’ Director of Litigation and a well-known commentator on all things to do with electronic disclosure / discovery, has beaten me to a full commentary on two of the conferences which I attended recently. Since he has done it so well, and since I am still out of my office speaking more than I am in my office writing, I will gratefully point you to his excellent article A Tale of Two London ESI Forums on Ralph Losey’s e-Discovery Team site.

I have mentioned both conferences (see e-Disclosure conferences give plenty to think about) and will say more about aspects of them over the Summer. They were the DESI II Workshop and the International Conference on Digital Evidence. The key points from Jason Baron’s article insofar as my catchment area is concerned are as follows:

The strategy of discovery is as important as the technology

I missed the talk by Jeane A Thomas of Crowell & Moring in Washington as I was speaking at the Lawyer conference up the road. As reported by Jason, its theme was that, whilst technology is providing better answers to the growing volumes of disclosable documents, the key is that lawyers themselves need to think more strategically about how to conduct reasonable discovery. This ties in with Jason’s analysis of Master Whitaker’s speech the following day, referred to below.

US cases on search in e-discovery

I also missed Doug Oard of the University of Maryland who spoke about some US cases which emphasise the importance of search technology, notably United States v O’Keefe and Victor Stanley v Creative Pipe, on which I plan to write in due course. I think that my conclusion, when I have digested them properly, will be that they provide a good illustration of why the UK’s lower-key approach has some advantages over the US approach.

My US friends will forgive me, I think, for saying that the UK’s perception of what happens in their courts (and I stress the word “perception”) is one of the reasons why courts and practitioners have deferred grappling with electronic disclosure here. The difference lies in our respective attitudes to discovery, not to anything peculiar about the “e” bit – that and the fact that Americans seem to send so many more emails per capita than anyone else does. More on these differences below.

Technology as a support to human judgement

H5 have featured in my commentary before as being at the higher end of the intelligent application of technology – and, more importantly, intelligent process – to discovery. I will content myself with one quotation from Jason Baron’s summary of Bob Bauer’s talk. “There is no substitute for a rigorous characterization of the explicit and tacit goals of the senior litigator [and] what is required is a system (people, process, and technology) that replicates and automates the senior litigator’s human judgement”. The explicit and tacit goal of the judge – the most senior litigator who counts here – is to find out what issues really matter and to make the parties take the shortest and most cost-effective route to the documents and other things which flush out the facts about those issues. To me, the important thing is not so much that the technology “replicates and automates” human judgement but that it supports it – that the replication and automation is transparently an aid to the thought-process rather than (as many fear) a purported substitute for it. Bauer rightly stressed the need for “rigorous measurement and statistically valid, in-process quality control” which, in my terms, means that the lawyer can see and check what is being done on his behalf.

Mere relevance versus obvious materiality to the issues

The second half of Jason Baron’s article covers the International Conference on Digital Evidence and nearly all of that is about the speech by Senior Master Whitaker. My own notes of this extremely good speech remain as scribbles on a scrap of paper. I commend to you the parts which Jason has pulled out as “eye-opening” points which confirmed Jason’s view that judges and lawyers everywhere – or at least, by this example, in the U.K. as well as the U.S. – find themselves essentially together, all in the same soup. We are all struggling to find reasonable ways in dealing with increasing volumes of complex ESI.

Jason highlights in particular the UK’s narrower approach to mere relevance and the focus on only those documents of obvious materiality to the issues, referring as he does so to my own article Relevant is irrelevant to standard disclosure.

His conclusion is sufficiently interesting to warrant an article of its own and I will come back to it – with just this clue. My ambition to encourage cost-effective use of the rules and technology to streamline the discovery / disclosure of documents in litigation does not stop at Penzance – Google Maps will help those of you who find this reference obscure. We have learnt a lot from the US courts as they have blazed this trail. Might we have something to send back to them by way of suggestions? Jason Baron thinks we might, and so do I. More anon.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, eDisclosure, eDisclosure Conferences, eDiscovery, Electronic disclosure, FRCP, Litigation Support. Bookmark the permalink.

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