The article to which I am about to refer you is in fact called E-Discovery in the $50,000 Case by Conrad Jacoby and not as my heading shows it. We in the UK renamed the ancient process known as discovery of documents ten years ago and called it disclosure, as part of the frankly stupid idea that if you give something a trendy new name you somehow make it better. Sterling is now so debased as against the Dollar that the difference between 50,000 of the one and 50,000 of the other does not matter much in the context of which Jacoby writes.
How can you handle electronic documents cost-effectively in cases whose value is disproportionate to the work involved in strict compliance with the rules of discovery / disclosure? Many in the UK blame the advocates of litigation support technology, as if we are somehow responsible for creating all this stuff. It exists. It has to be dealt with if you are to comply with the rules. Pretending that your clients and their opponents do not have electronic documents has two outcomes – breach of professional duty, and unexpected costs down the line. Better, surely, to square up to the facts and develop a strategy to handle the documents efficiently.
The article refers to some features which are peculiarly American or which, at least, do not feature to the same extent in the UK. We gaze in disbelief as US courts and lawyers impose ever higher burdens on each other, chasing every “relevant” document and seeking to destroy opponents’ cases over apparently trivial matters – it is not that legal holds, defensible preservation and collection, and chains of custody are not important, just that they are not more important than a just result about the issues. Justice which you cannot afford is no justice.
Americans may (to our eyes) give themselves unnecessary burdens, but litigation is far too expensive in the UK as well. There is a lot of valuable comment, and hard practical advice, in Conrad Jacoby’s article which is as applicable as in the US. I will look more closely in due course at the Final Report which Jacoby refers to from The American College of Trial Lawyers and the Institute for the Advancement of The American Legal System, but I am more interested in the broad idea that the duty of discovery must be qualified by proportionality, particularly in smaller cases. The key paragraph is this one:
For litigators handling smaller disputes, proportionality is critical for managing discovery. The “reasonableness” standard articulated by rules of civil procedure is deliberately open-ended and is meant to permit different results in different situations. A lawsuit worth $20,000 simply does not merit the same amount of fact discovery as a dispute involving $20,000,000. Many practitioners, however, fail to adequately educate the judge as to the true costs of the discovery being requested. Without such supporting evidence, presented in a manner that is both well-supported and easy to understand, judges may not fully understand when a discovery request is disproportionate to the size of the case or the specific issue being litigated. Understanding and communicating these costs is a vital part of small-case e-discovery.
There is nothing patronising in this idea of “educating the judge”. The reference is not to the judge’s own innate abilities and knowledge (though that will obviously vary) but to the fact that every situation is different. If the lawyers do not know what sources exist, what might be in them, what bearing they may have on the issues, and what the costs are of extracting and producing them, how can any judge make a case management decision which is proportionate?
The sentence beginning “Without such supporting evidence…” in the passage quoted above connotes no more than the obligations in the Practice Direction to Part 31 CPR to find out about the clients’ electronic sources, to discuss them with opponents and, if necessary, to take them to the judge for a decision. This matters at least as much in a small case as it does in a big document-heavy one.
Once again, I am obliged to Rob Robinson and Unfiltered Orange for pointing me to an article which I would otherwise have missed. You can sign up for his weekly e-mail listing of the Top 25 Electronic Discovery Updates from the Unfiltered Orange page.