Discovery of Australian and US connections

The purpose of the e-Disclosure Information Project is to assimilate and disseminate information about electronic discovery / disclosure. As you may conclude from my silence on this site for a fortnight, I have been doing more assimilating and less dissemination recently. Apart from one article part-drafted on the floor at dawn between flights at Kuala Lumpur airport, my output has been zero. The inputs, however, are considerable, and it will take a while to record them all. This article is a summary which will be followed by more specific articles. Its theme is collaboration between the thought-leaders in those common law jurisdictions which rely on the exchange of electronic documents in the search for justice.

KL was a staging-post en route for Sydney, where I was booked to speak at the Ark Group conference Preparing your Organisation for eDiscovery. From there I flew to Washington for the Masters Conference. My subject in Sydney was Responsibility for electronic disclosure, which surveyed every level from the state’s duty to provide an efficient forum for commercial disputes down to the individual duties of lawyers, clients and judges to manage cases and the documents needed as evidence in them. The main draw in Washington was a keynote speech by US Magistrate Judge John Facciola which took the same theme to a very much higher level, as I will report separately.

All this points to a significant broadening of the scope and ambitions of the e-Disclosure Information Project. Hitherto, I have focused narrowly on Part 31 of the Civil Procedure Rules and its Practice Direction, how they map in UK civil proceedings to the problems of ever-growing volumes of data, and how applications and services can be used to control those volumes. I have used US sources to illustrate points, chiefly to emphasise that the UK system is very different from that in the US despite apparent similarities. The policy reason for this on my part is that UK lawyers and judges point to the US experience as a reason for ducking the whole subject, in many case, frankly, without understanding what is different there or understanding the potential in our own rules to do things very differently.

We do not, either, give enough recognition to the fact that Australia and Canada face the same issues and are, in some ways, ahead of us in facing up to them (although not necessarily in resolving them). No one of these jurisdictions claim to have all the answers – what became clear at the Masters Conference was that the US case management system may be a bigger ship adrift in bigger seas but it is no less adrift than we are in the UK and other common law jurisdictions which require parties to litigation to disclose their documents.

To stretch this analogy a little, each of these ships has crew members who are concerned to bring the vessel under control. They may be on the bridge, at a government, policy or judicial level, or like me, involved in educational and informational roles. What my round-the-world tour emphasised for me is that there is far more at stake here than whether this company wins its case over that company or whether one law firm is more profitable than another one. To muddle my sea-going parallel somewhat, we are all in the same boat, and the commercial future of each of these countries depends on us pooling ideas and devising strategies which tame the costs of litigation and regulation.

This over-arching international ambition remains solidly local in its roots. My visits to Sydney and Washington were preceded by a well-attended seminar in Birmingham, and I am speaking in London and Birmingham again this week. These events and the continuing involvement with other interested UK parties – with judges like Senior Master Whitaker and HHJ Simon Brown QC, with the London-based litigation support managers and with UK law firms – are, if you like, my contribution to the informal international discussions from which I carry back the views and experiences of others.

Master Whitaker is an advocate of the Sedona Canada Principles of January 2008. Judge Brown spoke at a financial litigation conference in New York earlier this year and both Master Whitaker and Judge Brown have shared platforms with US judges over here recently. The Civil Justice Commission has links with Canada and is interested in co-operative work with both there and Australia. I already knew Judge Facciola, and my recent trip has led to introductions, directly and indirectly, to other thought-leaders in the US. Browning Marean of DLA Piper US LLP is a tireless advocate of efficient handling of e-discovery around the world. He was a speaker with me in Sydney and he and I are co-chairs of the West LegalWorks conference in London on 20 November along with George Socha, the inventor of the Electronic Discovery Reference Model (EDRM) diagram used everywhere – almost every speaker in Sydney referred to it – and co-author of the influential Socha-Gelbmann survey.

I know Jo Sherman and Seamus Byrne of eDiscovery Tools who, wearing their Australian Federal Court policy hat, have been largely responsible for the e-Discovery Practice Note now pending in Australia. Geoffrey Lambert of KordaMentha in Melbourne, another well-known thought-leader on e-discovery, came to see me in Oxford a couple of week ago and was a speaker in Sydney. He may be based 10,500 miles away, but we quickly totted up a wide range of connections in common.

Add in the litigation support managers from the larger London firms, such as Vince Neicho of Allen & Overy, Mark Dingle of Simmons & Simmons and Jonathan Maas and Reza Alexander of DLA Piper UK, all of whom have a wide range of US connections. Note that nearly all the suppliers who support the e-Disclosure Information Project – and do so with their informational resources as well as with financial support – have interests which are transatlantic at least and, in many cases, yet more widely international.

The sum total is a wide network of people who are interconnected by a common interest, whether they sit on the bench, work in law firms, sell software and services or, like me, educate, comment and report on the industry. Their respective dominant motivation varies, from state policy to better judicial case management to making a profit for their firms or companies, but they have a common interest in finding ways to cut the time and cost of litigation.

The present economic crisis sharpens the need to get moving. Opinion is divided in all three countries in which I have been recently as to whether a flood of litigation will follow. I think it must, and that companies, law firms and, above all, the courts will be overwhelmed with document-heavy cases if we do not act quickly to control the volumes put into play by parties.

Part of the answer lies in statutory changes. Since 19 September the US has a new Rule 502 of the Federal Rules of Evidence which protects parties from subject-matter waivers and from the effects of inadvertent disclosure of privileged documents, not just in the instant case but in others. Its intent is to reduce the enormous cost of page-by-page privilege reviews. The discussion in Washington implied that not everyone is convinced that the statute will in fact have that effect – you cannot “un-ring the bell” once your opponent knows what your document says – but the new rule is evidence of a determination to tackle the costs of disclosure. In Australia, the final form of the proposed Federal Practice Note 17 on Document Management, Discovery and the use of Technology in the conduct of Litigation is still under discussion, but shows a determination to reduce the burden of discovery. In the UK, we are about to reconvene the group charged by Master Whitaker with producing a Technology Questionnaire to compel attention to electronic sources of data at an early stage.

Apart from such statutory interventions, in all three jurisdictions the key focus is increasingly on active case management by judges and on earlier “meet and confers” as the US rules call the obligation to share and co-operate on this front. Although we have long had a strong network of personal connections between the players in these countries, we need to firm this up into a more structured forum for the exchange of ideas.

If all this sounds remote from the issues facing Birmingham lawyers handling litigation in the West Midlands, it is not. I reject the line which many take, to the effect that what happens in the US today will happen in England and Australia in two years time. I prefer instead the idea that we all face the same issues, that the software and services available to address them are common to all, and that we can learn from each others’ advances and thinking as well as from each others’ mistakes. There is, suddenly, a real prospect that we can do this in a way which will benefit all of us.

My last conversation in Washington before rushing for the last of my five flights was with Ronald Hedges. Ron Hedges is a former US Magistrate Judge, now a partner at Nixon Peabody, and is heavily involved in judicial training and other aspects of spreading awareness and understanding of case management issues. He is one of the joint authors of Managing Discovery of Electronic Information: A Pocket Guide for Federal Judges. That set up a dialogue whose intent is the sharing of ideas at a judicial level. There are enough good links to Australia and Canada to do the same with them. Although I have seen enough of aeroplanes for a week or two, the incentive of tapping into the experience of others and sharing ours is compelling.


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, Courts, CPR, Discovery, eDisclosure, eDisclosure Conferences, eDiscovery, EDRM, Electronic disclosure, Litigation, Litigation Support, Part 31 CPR. Bookmark the permalink.

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