Preserving the old ways, protecting the new ways

This column, as you may have noticed, is deeply attached to the old principles of discovery of documents as a means of bringing evidence before the court. It is also a determined advocate of new ways of managing it. The US has tended to look on our rules and practice as rather quaint. As the gloss comes off the American way, however, there is a new appreciation of the British approach.

My title comes from a 1968 song by the Kinks. The Village Green Preservation Society included the lines

Preserving the old ways from being abused
Protecting the new ways for me and for you
What more can we do?

The Kinks were past their prime by 1968, with Waterloo Sunset and Sunny Afternoon behind them. It was the year in which Led Zeppelin and Deep Purple were new, and the nostalgia and sentiment of The Village Green Preservation Society were deliberately out of the mainstream, championing old virtues in a style redolent of an older (and perhaps non-existent) past. The previous year’s Summer of Love and flowers in your hair may in truth have been pretty unsophisticated concepts, but they seemed very modern compared with Ray Davies’s plea for “little shops, china cups and virginity”.

America seemed to have left us far behind in 1968. There were four Apollo missions to match the Russian Soyuz flights. The US topped the Olympic medal count with 107 medals against Russia’s 91 and Great Britain’s 13. Even the bad things – the assassinations of Martin Luther King and Robert Kennedy, race riots and the election of Richard Nixon – made an impression on the world.

Until 1914, Britons were the world’s travellers, as tourists, as builders of empire, as traders and as exporters of technology. After the Second World War, the baton passed to America.  American tourism had cultural and political aims almost as important as trade and business ones. Visiting Europe was actively encouraged by the US government in the aftermath of the war when “Dollar diplomacy” was a policy aimed at keeping Europe onside in the Cold War. The Johnson administration’s attempts to curb this in the mid-1960s was a product of American economic decline relative to Western European countries and of the perceived need to stem the outward flow of dollars. It failed – the proportion of Americans able to travel may have been small, but their number was large and they fought fiercely for the freedom to travel and spend abroad.  The American tourist became a stock figure of cartoons (large, brash, crop-headed, camera at the ready, “if this is Thursday it must be Cambridge”), and if his dollars were more appreciated than his taste in leisurewear, he kept on coming to what appeared to him to be a backward theme park. He came to Ray Davies’s village green which stood both for its literal self and for the country as a whole.

And now all the houses
Are rare antiquities
American tourists flock to see the village green
They snap their photographs and say “gawd darn it
Isn’t it a pretty scene?”

The balance has altered somewhat over the years. The financial deregulation and ensuing success of London turned that part of the village green into the centre of the economic world; the debased value of the dollar (until recently) and fear of terrorism kept Americans at home; corrupt government, big business and pig-ignorant planning officers conspired to trash our heritage, debasing the “pretty scene” by destroying the genuine culture which had made it up and replacing its buildings, views and icons with tacky facsimiles – “heritage trails”, “cultural initiatives”, “leisure parks”, and “Victorian-style” street furniture; regional  heterogeneity became universal homogeneity as high streets filled with identical shop facades, identical not only to those in the town next door but, thanks to Starbucks, McDonalds and their like, identical to the rest of the “civilised” world. The American tourists still “snap their photographs” but what they take home is almost as much a reflection of their own culture as it is of ours.

I give you this picture of mutual stereotyping and cultural dilution because, forty years on, it parallels the views which each country holds of the other in the field of litigation discovery. We invented the concept and exported it. America has thrived by taking ideas from elsewhere and writing them large. Like rocket science and nuclear technology, discovery became bigger, more sophisticated (this is not necessarily a compliment) and more expensive in US hands. As it morphed into electronic discovery, America looked back at (and down on) the place where discovery began, wondering at its primitive practices and not quite able to believe that we manage without wholesale warfare over admissibility, defensibility and all the other attributes with which, to our eyes, America has buried justice in procedural infighting.  The mutual incomprehension came to resemble the days when Americans gawped at the rare antiquities round our village green and we sneered at their over-large cameras, excessive luggage and florid costumes.

We all quite enjoyed it, if truth be told, each side basking in a comfortable feeling of superiority which it has become unfashionable to feel, or at least to express, about other races and nations. To English lawyers, the American way of litigation was rather like the American way of making war, encapsulated in a quotation I have used before from a staff officer in General Mark Clark’s Italian army: “Sir, in the American army, we don’t solve our problems, we overwhelm them” – which matches an outsider’s perception of an American discovery exercise. The parallel with war works the other way as well, with the British apparently going into each war equipped to fight the last one – we went to the Crimea in 1853 with the tactical manuals of Waterloo, wore scarlet to fight the Boer in dusty Africa in 1899, rode horses to save France in 1914, and tackled the Bismark with biplanes in 1941. It is perhaps worth pointing out that we did, of course, win on each occasion, eventually and at great cost. Both time and cost might have been saved had we invested more in skills and technology beforehand – as with discovery.

Let us come back to my title and the verse from which it came:

Preserving the old ways from being abused
Protecting the new ways for me and for you
What more can we do?

The “old ways” in this context are the principles of full disclosure of documents. They are being abused by ignorance of the rules, both the specific ones like the obligation to discuss sources in paragraph 2A.2 of the Practice Direction to Part 31 CPR and general ones such as the obligations of proportionality. The “new ways” involve the electronic handling of documents which are largely electronic anyway. They do not need protecting so much as fostering.

What more can we do? We can apply the rules as they stand, and perhaps refine them a little. Judges might manage costs along with the issues, and could show a little interest in the technology – not in how to use it or how it works, just what it can do which is relevant to the saving of costs and time.

High on the list of things worth doing is the continuing dialogue between those involved in discovery in the US and UK. Behind the US bravado and bluster lies much serious thought about how to tame the monster, as well as first-rate technology designed for the purpose. The UK’s apparently quaint approach to disclosure conceals some workmanlike rules which deserve better use and serious consideration by others as well as ourselves. My perception is that we are getting that dialogue at last in place of the mutual persiflage which has characterised US-UK relations for so long.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Case Management, Court Rules, Courts, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, FRCP, Legal Technology, Litigation, Litigation costs, Litigation Support, Part 31 CPR. Bookmark the permalink.

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