I have for some time been mentioning Australia as the jurisdiction to watch for developments in court rules and procedures relating to case management and, in particular, the handling of electronic documents.
They warrant a closer look on my part, not least because I have been invited to speak at Ark Group’s Corporate eDiscovery Conference Preparing your organisation for eDiscovery in Sydney on 13-15 October 2008. My main subject will be Responsibility for eDiscovery, which allows me to bring together sources as diverse as the UK Commercial Court Recommendations, the US Qualcomm sanctions case, the recent US cases (O’Keefe and Victor Stanley) on the use of search technology, and the express requirement in Australia to the effect that lawyers who appear before the courts ought to know something about relevant technology or get suitable help when they do not.
As a short-cut to Australian developments, it is easiest to refer you to Seamus Byrne’s site In Pursuit of Relevance which I have belatedly given as a permanent link from this site. Seamus is COO of eDiscovery Tools and, with CEO Jo Sherman, influential in bringing forward the new developments in case management relating to electronic disclosure in Australia.
Seamus and I plan to run a workshop on the third day of the Sydney conference which will bring an international perspective to eDisclosure. I had hoped that we would be joined by Browning Marean of DLA Piper US LLP, who is speaking on Day 1 but, alas, he will have left by the third day.
What is the value of all this to lawyers and judges in London, Birmingham or, indeed, Edinburgh whence I had a kind expression of interest this week? When I speak in Cardiff or Cambridge, what value will a trip to Sydney (or Washington where I was a few days ago) bring to the audience? And why might US or Australian lawyers and their clients be interested in us?
The answer lies at several levels. At an international level, parties are often free to choose where they settle their differences. One of the drivers for Lord Woolf’s reforms was the fear that London might lose its place as the international forum of choice, and commercial litigation services were and are a significant invisible export. Australia has much the same to fear of Singapore.
At a different level, the problems raised by electronic documents are the same in any jurisdiction in which there is an obligation to give discovery (in the US and Australia) or disclosure (in England and Wales). Further the solutions are the same – many of the software applications in use, and the skills and techniques which go with them, are common in all three jurisdictions.
The rules are recognisably similar as well, and this is no accident. This is nothing to do with the legacy of colonisation but derives from interchange between the thought-leaders in the three countries and from the fact that there are a limited number of ways of addressing like problems within a procedural code.
Lastly, the massive scale of some US law firms perhaps obscures the fact that most US attorneys work in firms much smaller than the average UK law firm, yet handle much more document-heavy litigation. The culture in which that litigation thrives may be very different, but the economics are much the same.
Together, these factors supply some good reasons why English, American and Australian litigation lawyers and law-makers should stay aware of what is being done in the other jurisdictions. Just now, Australia seems to me to have the lead in thinking about how to contain the costs of disclosure. We will have to wait and see how that works in practice.
Meanwhile, what I talk about in Leeds is informed by what I hear in New York and vice versa, and I very much look forward to doing the same in Sydney.