Going the extra mile to understand discovery

It takes roughly twice as long to travel from Sydney to London via Washington as it does to fly directly eastbound. I could have been home in Oxford in about half of the 30 or so hours of travelling time involved in the long hop across the International Date Line, the arrival in Los Angeles five hours before I left Sydney, the run between terminals at LAX, the airborne cattle truck which took me across the USA, the flog into Washington from Dulles Airport and, two days later, the red-eye back to London. It also cost me a fair amount of money.

The main draw was a keynote speech by US Magistrate Judge John Facciola at the Masters Conference in Washington. There was plenty else worth being at the Masters Conference for, but this was why I came. It was worth it.

I know Judge Facciola from previous conferences. He took part in a mock case management conference in London last November (see T3 – Trial Tactics and Technology in London). I got from that a quotation of his which I use in many of my presentations (“Who is going to be responsible for this discovery? Is it you? Are you the one who is going to make sure that this court’s order is carried out?”). I also learnt from talking to him at lunch about the value which judges get from educational breaks at which they can compare notes and question each other about the rationale for their reported case management decisions – oh that we had some to report or, indeed, any mechanism for reporting them. I met him again in May when he and I were amongst the participants in a Legal Forum organised by Autonomy in Washington (see Autonomy hosts legal forum in Washington.

Judge Facciola is one of the most knowledgeable and forceful proponents of effective case management in the US, with particular emphasis on electronic discovery. In Equity Analytics v Lundin, he made a pragmatic set of orders which, by the use of expert technical evidence, reconciled the plaintiff’s wish to examine a former employee’s computer with the employee’s wish to limit the scope of the search.

In US v O’Keefe he examined various matters, including the obligation of a producing party to provide documents in a manner which bore some relation to the way in which they were used and stored. The sentence which struck me most from O’Keefe came at the end of a ruling on the manner of resolving production issues, when Judge Facciola said “I intend to consult with the parties as necessary to expedite this process, and I would ask them to call upon me as they are doing this if they believe I can resolve any controversy”. How is that for the “active management” which our rules enjoin on UK judges?

O’Keefe is better known for Judge Facciola’s observations on the difficulties of defining a list of keywords for searching for documents. The most quoted passage is this one:

“Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman…”

This particular angel fears to tread into the debates which have sprung from these sentences in the US, where there is unanimity only as to the effect they must have on the care and skill which lawyers must apply before asserting that they have made a proper search. What matters in a UK context is the model example of care and skill which the judge uses to address discovery disputes.

So Judge Facciola goes the extra mile to understand discovery. I went, I calculate, an extra 3,290 miles to hear him speak about it. His thoughtful – and fairly critical – speech took the level of debate very much higher than anything we hear in England. If some of it has an American flavour, that is not surprising nor does it detract from its value in a UK context. Read my report of his speech here.

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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 Case Management, Court Rules, Courts, CPR, Discovery, eDisclosure, eDisclosure Conferences, eDiscovery, Electronic disclosure, Masters Conference. Bookmark the permalink.

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