Many UK lawyers and judges affect disdain for the American way of litigating and, in particular, for the way US lawyers handle electronic documents. The UK lawyers’ perception that e-disclosure is all very expensive not only confuses cause and effect – it is the existence of the documents which is the primary problem – but blinds them to the constructive criticism which many US lawyers and judges make of their own practice. The problems and most of the (largely US) technical solutions are the same. A look at the similarities in current US thinking might inform our own approach.
The recurring theme in this area in the UK at the moment is the need for two things – getting more and better information about one’s own clients’ documents and a more co-operative approach to working out how to manage disclosure so that the pursuit of justice is not buried by the costs of trying to achieve it. The main stumbling block here is ignorance – there is plenty of expensive gamesmanship being played, but much of the money thrown away is wasted because practitioners know little about the rules and less about the technology.
There is plenty of that in the US as well, but the main cause of inflated costs lies in deliberately engineered quarrels, causing one judge to say “if there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes” (US District Judge Wayne Alley in Krueger v. Pelican Prod. Corp.).
I got this quotation from an article by Clifford F Snier in the American Inside Counsel web site. Most of the article concerns US Magistrate Judge Paul Grimm’s Opinion in Mancia v Mayflower Textile Services Co. There is enough to do reading UK judgments at the moment to make me grateful for someone else’s commentary on US ones, and I refer you to the article because it makes otiose any attempt by me to pick out the passages from Mancia relevant to UK discovery disputes. The bits which matter are not directly to do with the vicious tactical disputes which UK lawyers consider as peculiarly American, but with a broader unwillingness to co-operate. Here is Judge Grimm’s overarching observation:
First, the rule [FRCP 28g] is intended to impose an ‘affirmative duty’ on counsel to behave responsibly during discovery, consistent ‘with the spirit and purposes’ of the discovery rules; this requires cooperation by counsel to identify and fulfill legitimate discovery needs, yet avoid seeking discovery the cost and burden of which is disproportionally large to what is at stake in the litigation. Counsel cannot ‘behave responsively’ during discovery unless they do both, which requires cooperation rather than contrariety, communication rather than confrontation.
Lack of information, Grimm says, is what is behind excessive requests for discovery:
This would not be so if lawyers approached discovery responsibly, as the rule mandates, and met and conferred before initiating discovery, and simply discussed what the amount in controversy is, and how much, what type, and in what sequence, discovery should be conducted so that its cost—to all parties—is proportional to what is at stake in the litigation.
He went to make various suggestions which you can read for yourself but which all support his broad opening points. If this approach had been taken from the start, he says, most if not all of the discovery disputes could have been resolved without involving the court. The upshot for one party would be less discovery at lower cost and for the other it would be helpful information more quickly. This, Grimm says, enhances the legitimate goals of the adversary system, by facilitating discovery of the facts.
I commend to you particularly the paragraphs towards the end of the article about the confidence which lawyers need to fight which is undermined by their fear of the unknown. In a passage which echoes something I say frequently, the article says:
There’s an entire industry of consultants and service providers out there that can provide the guidance and support lawyers need with complex e-discovery. The courts know this and now expect that lawyers will take advantage of this readily available expertise. They don’t want to hear you whine about burdensome discovery without some expert opinion to back you up, or better yet, to help you realize it’s not burdensome after all.
There is no suggestion that any of the parties in Digicel or Abela approached disclosure in bad faith, still less that they adopted any of the “repugnant attitudes” for which Judge Alley would condemn lawyers to Hell. Both cases may well, for all I know (or care) have involved best behaviour all round, and the disputes have all the attributes of genuine differences of opinion between the parties. In both cases, however, the court made adverse comments about the state of one party’s preparatory investigations and about the lack of co-operation.
Most of what I have quoted above from Mancia might have been said by an English judge, with the same authority of both rules and common-sense. There is indeed plenty to discard or ignore from US civil proceedings, but this attitude to co-operation and proportionality is not one of them.