A growing theme on this site which will get more important in 2009 is that electronic discovery in the US is getting to be of more interest to us in the UK. This is not because the English courts are getting more involved in e-disclosure (they are, but that is not why we are paying more attention to the US). The new interest derives from US Opinions which have wider and more universal messages than hitherto.
Americans can pound each other to bits over “spoliation” and “defensibility” and we could not be more bored. Nor do we really want to be told how to do it at a judicial level (but we love the technology, thanks). That is in part because there is a growing appreciation that we have some pretty good rules of our own if only anyone would use them, as judges are beginning to – see Digicel, and Abela ( the links are to articles of mine about these English cases).
What is of increasing interest to us from the US courts is the high-level intelligent thought being applied by some judges, not just to the bare rules, but to the duties and responsibilities which go with being a litigation lawyer with a duty to the court as well as to the client. These do not come across as mere abstractions, but are firmly rooted in a wish to see the litigation process made more efficient for the benefit of clients, lawyers – and justice.
I wrote an article on this theme last week, Mancia: US discovery lessons for UK lawyers, which picked out some of US Magistrate Judge Paul Grimm’s words which appeared to me to have this universal message, and to make as much sense in the UK as in the US.
Gratifyingly, that article has been picked up by at least one US web site, Gabe’s Guide to the e-Discovery Universe which has an impressive set of links to other sites. That I do not know the author is neither here nor there; what matters is that this community of unofficial reporters can help point each other, and thence their respective audiences, to a sub-set of the thousands of articles and posts which exist on this subject.
Gabe’s Guide, for example, has a short post yesterday which points to a National Law Journal article on privacy which I probably would not have found for myself, but which is helpful to both US and UK audiences. I will write separately about that.
There are other reasons why there will be much closer connections between US and UK thinkers (and doers) in the coming year, and links which are just as important with Australia, Canada and other common law jurisdictions which require discovery of documents. I am involved to a greater or lesser extent with three or four separate but interlinked initiatives which will will generate useful dialogue and cross-fertilisation between these jurisdictions.
LegalTech from 2 to 4 February in New York will be the first opportunity to start pulling some of these strands together. If you want to know more, tell me more, or generally get involved, seek me out there.