The old cliches are the best, and it is fair to say that English judgments about the case management of electronic disclosure are like London buses at the moment. After years with hardly any any reported cases, we have had Hedrich, Digicel and now Abela in quick succession. I am sure that decisions about the scope of electronic disclosure are being made every week, but it is the reporting which is new. The reports in turn give rise to commentary.
The Solicitors Journal carries an article about Digicel by Alex Dunstan-Lee of KPMG Forensic and Ed Sautter of Mayer Brown, both well-known on the subject of e-disclosure. The conclusions they draw from the judgment – (i) gather as much information as possible about the data in question; and (ii) enter into a detailed dialogue with the opposing party regarding that information – are as short an encapsulation as one needs from this case. Both are obligations set out in the rules and in the Practice Direction to Part 31 CPR. Both seem pretty obviously the right thing to do anyway.
Alex Dunstan-Lee and Ed Sautter refer to the need to have an “educated discussion”, which echoes a point made by US Magistrate Judge Paul Grimm in the H5 webinar which I reported on yesterday (see Getting expert search evidence in front of the court). Anecdotal evidence from the courts suggests that far too many parties, including those from well-known firms engaged in quite heavy litigation, are turning up to CMCs with no idea – not only no idea as to their own clients’ document sources, but no idea why it should be thought important.
It is 15 months or so since KPMG launched a report on judicial awareness and knowledge about electronic disclosure. We have yet to see any formal training being given on the subject, but it has certainly moved up the agenda this year. It may be a coincidence that we have three reported cases in succession. Perhaps they are feeding off each other as judges read decisions made by others. It is possible that the apparent spate of reported decisions merely reflects the priority given to the subject by those who decide what to report. Whatever the cause, practitioners have reason to start understanding the subject, whether to avoid getting caught on the hop or for more positive reasons.
I pick on the Solicitors Journal article because of the useful check-list which comes with it – the “SJ takeaway”. Those about to face an e-disclosure exercise may want to run their eye down it.