I have written much about the Digicel case Digicel (St. Lucia) Ltd v Cable & Wireless Plc [2008] EWHC 2522 (Ch) but delayed writing a summary of the actual judgment because I knew that barrister Clive Freedman was doing so. His article appears on the SCL web site with the title One Search or Two? and I commend it as a succinct report by a knowledgeable commentator.
Clive refers to a working party which is preparing a Technology Questionnaire but modestly omits to mention that he is a member of it, as I am. Our remit extends beyond the Questionnaire and on to a new Practice Direction which, when added to Digicel and the yet more recent Abela judgment, will ensure that judges and practitioners will no longer be able to ignore the disclosure rules as they relate to electronic documents.
The rules are in fact secondary to the problem itself – electronic documents exist and must be dealt with, proportionately and cost-effectively. In practice, that can only be done co-operatively, with parties discussing what documents are needed for the just disposal of the issues, and using the court as referee if they cannot agree. That is common-sense, but it also happens to be what the rules require. Digicel and Abela both involve judges hearing the views of both parties and coming to a balanced decision as to what is required.
The more thoughtful US judges are bringing the same approach to the same problem – see my article Mancia – US discovery lessons for US lawyers about this. The article ends by saying:
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.
There will be quite a lot of ideas exchanged between UK and other jurisdictions – US, Canada and Australia – about electronic disclosure in 2009. The subject-matter will not be particularly technical, not computer-technical at any rate. Most of it will be about the rules and, more specifically, about the practice. The issue in all these civil courts is not really what the rules say, but whether the rules are complied with and enforced. The context will not be the rules for their own sake, but how they can used to make litigation cost-effective for clients whilst remaining profitable for lawyers.
Clive Freedman’s title One Search or Two reflects the fact that disclosure in Digicel proved expensive because a party was made to redo a disclosure exercise which it had already done. It seems worth a read if only to avoid that fate for your clients
