My post about the increasing exchange of ideas between the US and UK on matters of electronic discovery (Preserving the old ways, protecting the new ways) followed a spate of references in US e-discovery commentaries to what is happening in the UK. I observed that “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”. An English audience may be interested to see some of what is said about us in the US.
The sources referred to below are amongst those to which I pay regular visits anyway, but their common element last week was that they all linked to articles of mine (and therefore turned up on my visitor statistics list). The point of the observation is not so much pride in the quality of my audience as evidence that what happens in the UK is now of interest in the US, which you would not have found a year or so ago.
Craig Ball combines hands-on practice (not least as a Special Master handling complex e-discovery disputes) with a regular column in which he covers, in often acerbic terms, developments in the courts and at suppliers. His article Over There: Where Angels Have No Fear to Tread is a detailed analysis of Digicel (St Lucia) v Cable & Wireless. It is enough, you would think, to summarise the article. With Craig you need to start by decoding the heading.
“Over there”, as the express link to an mp3 confirms, is a reference to a 1917 patriotic song written to cheer US soldiers who were on their way to fight in Europe. Those who have seen Saving Private Ryan or U571 may have got the wrong idea about American involvement in European wars. We were there too. Craig’s reference is to the mutuality of the endeavour – whether biffing the Hun or tackling the problems of electronic disclosure. That is indeed expressed in the article when he says “once we change the “esses” to “zeds,” there’s much we Yanks can learn from the Digicel decision”.
What, though, of the Angels not fearing to tread? Craig Ball’s American audience will instantly pick up the reference to the most famous passage in US Magistrate Judge Facciola’s Opinion in U.S. v. O’Keefe, No. 06-CR-249 (D.D.C. Feb. 18, 2008):
Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics … Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence.
The implication from the title – “Over there: Where Angels have no fear to tread” – is that, whilst a US court (or, at least, Judge Facciola’s court), will require the angels to be backed up by an array of experts before their choice of key words will be acceptable, the English courts will manage without. Craig says:
Mr. Justice Morgan’s opinion is the rare case where a jurist closely analyzed the efficacy and burden of particular keywords for electronic search–an undertaking that U.S. Magistrate Judge John Facciola artfully characterized as a fool’s errand for lawyers and judges.
It may appear to follow from this that both Judge Facciola and Craig Ball would consider it foolish of a judge to purport to decide what key words should be used. I will duck that point for now, partly because I do not think that is what they mean, partly because the context is UK proceedings not US ones, and partly because the real points – testing and proportionality – are covered in Craig’s article.
The bulk of the article takes the key words which Mr Justice Morgan considered, and comes up with better, or at least different ones – slightly variant root words, and obvious mis-spellings or possible Americanisations which might be expected in the source, for example. The point about testing is not that the judge should have sat at a keyboard and taken samples but that the parties could have produced evidence of the outcomes of different searches as part of the material put before him.
The word “proportionality” does not appear in the article expressly, but the words “plowing through many thousands of hay straws for a single needle can’t be what the Court intended” sweep up a wider notion than its immediate context requires (as well, incidentally, as giving us an unconscious example – plow/plough – of the reasons why Americans and Britons might get different results from apparently similar keywords lists).
The real lesson from Digicel, for lawyers on both sides of the Atlantic, lies not so much in the keywords themselves as in the obligation to co-operate as to what they should be. In the UK, this is an express obligation, (Paragraph 2A.5 of the Practice Direction to Part 31 CPR since you ask) and Digicel’s importance lies in the fact that the little-known duty was dragged into daylight by Morgan J’s judgment. Judge Facciola does not need English rules to encourage him to impose co-operation on the parties who appear before him, but I think we will see more examples of one jurisdiction pointing to another’s rules and judgments to support its own approach to e-discovery.
Another American commentator who combines hands-on experience with detailed comment and analysis of e-discovery developments is Ralph Losey, whose e-Discovery Team blog is the US commentary closest in approach to mine (closest in appearance as well – we use the same WordPress theme). Ralph takes a more learned and scholarly line than I do, a function of his audience as much as of his own talents. The article which links to my site was in fact written by Jason Baron, Director of Litigation at National Records and Records Administration.
Jason was the first US thinker to detect that the UK rules have something to offer to US courts and litigators, something he concluded from a speech made in London last year by Senior Master Whitaker. In a long and (as usual) learned article, Jason reports on the two e-discovery conferences which took place in Barcelona last month. I was not at DESI III this year (I spoke at DESI II in 2008) thanks to a conflicting conference in London, and Jason’s account of that and of the Sedona Conference on Cross-Border and Privacy are well worth reading, the latter complementing my own article on the background to the privacy issue.
Like Craig Ball, Jason Baron picks up on Digicel, describing it as a “watershed kind of decision”, and summarising Master Whitaker’s speech about that and about the e-disclosure Questionnaire which we are developing in the UK. Jason ends his piece with a question:
To what extent would it make sense for the bench and bar in the U.K., or in the international legal community as a whole, to take up the cudgel in “signing on” to the The Sedona Conference® Cooperation Proclamation? I understand that the current document may be U.S.-centric, but it could easily be “internationalized” in a more generic form.
in light of Digicel and the overall tenor of Master Whitaker’s remarks, I can’t help but think that fostering greater cooperation is one of the keys to being smart in the digital age – that the nature, volume, and complexity fairly demands it, no matter what country one is in and which judicial system may control.
This is not a cross-border point but, like Master Whitaker’s speech and underlying paper, it is relevant to parallel developments in different countries, and not just the US and UK, since co-operation in litigation is seen as vital in Canada and Australia as well. If we all see co-operation as desirable, and if Sedona has produced guidelines which are seen as admirable in a country where co-operation has hitherto been seen as next door to betrayal of your client, then Jason’s suggestion has to be worth considering. I for one will put up my hand as being willing to work on this.
Gabe’s Guide to the e-Discovery Universe picked up on two of my posts – my account of my visit to Sydney and my article about outsourcing. My post about the small things which make or break a journey obviously struck a chord with Charles Skamser, who passed it on in the eDiscovery Paradigm Shift.
There is more to this than log-rolling by the international community of commentators. Jason Baron’s arguments for globalising the Sedona Cooperation Proclamation are really a sub-set of wider reasons for exchanging ideas. There is a great deal of education to be done within our respective jurisdictions. It matters also to keep the flow going in parallel jurisdictions with common interests.