The UK cast itself off from the US and the rest of the common law world when we renamed “discovery” to “disclosure”. Now the whole Special Relationship has apparently died. US-UK cooperation on discovery/disclosure will survive that.
Inevitably, this column attracts comments from time to time, varying from the sophisticated to the obscene (Tom Lehrer once suggested that these two terms were interchangeable to a New York audience). One of the more thoughtful ones recently read simply as follows:
It’s bl00dy “disclosure” you dinosaur
My correspondent is, of course, correct in his succinct observation. Since 1999, Part 31 of the Civil Procedure Rules for England and Wales has referred to the identification and exchange of documents as “disclosure” where every other common law jurisdiction refers to “discovery” and, by extension, to electronic discovery or e-discovery or ediscovery (I draw attention to the difference between the presence or absence of that hyphen because, although Google treats the two terms as more or less the same, Twitter, annoyingly, sees them as different).
As will be clear from various posts, I disapprove of the change to “disclosure” on various grounds, and not just because of e-mails reminding me that I am a dinosaur. Since no one can remember what the alleged motive was, it is assumed to have been one of those piddling changes for the sake of change so common at the time, designed to take our eye off the fact that everything was the same as before.
The irony is that the substantive changes to the discovery / disclosure rules in 1999 were both significant and beneficial, needing no label-changing to justify themselves. It is, indeed, plausible to think that the name change is to blame for the fact that almost no-one complies properly with Part 31- perhaps everyone assumes that the re-labelling is the biggest part of it, rather like the contemporaneous “New” Labour. Perhaps, as I have suggested before, the real evil is that actual disclosure (which Americans call “production”) is the least of it; the hard part, and the expensive part on which everything else turns, lies in discovering what documents you have.
That battle is long lost and I, as my correspondent would expect, am scrupulous to refer to “disclosure” where the subject matter is the CPR and the formal processes in the English courts. I am equally scrupulous to refer to “discovery” when talking about the US Federal Rules of Civil Procedure or those of any other country. Where I have the option, I am deliberately indiscriminate, both as to the term used and as to the various spellings, and will use a variety of terms in order to attract the widest range of search engine hits. Most of my posts in the last few days have in fact related to the US and refer properly to “discovery”.
There is a point here, however, of deeper and wider significance than nomenclature. One of my self-assumed roles is to narrow the gap between the US and the UK in the context of electronically stored information. The labels “discovery” and “disclosure” are the least of it, as is the conversion of all the breathless excitement of US marketing materials into the sober, understated form appropriate to English professionals. What matters far more are the deeper assumptions about each other’s approach to litigation and to technology. English lawyers use their perception of US litigation as an excuse to turn their backs on the technology which is seen as to blame for much of the expense. US lawyers are quietly respectful of the UK processes, but rather in the way that one might respect someone who makes furniture by hand – you can be assured of quality (of justice, that is, in a litigation context) but you wait a long time, the processes are unwieldy albeit thorough, and the cost high.
These perceptions are equally unfounded or, rather, what appears on the surface obscures benefits below. Let us mock, by all means, the American propensity for scrapping over trifles and standing on points of procedure which add only to the expense and not to justice, but do not overlook the very real efforts being made, in some courts and by some practitioners, to control electronic disclosure. Let them smile on our apparently archaic approach to finding justice, but our rules as drafted, particularly as to case management, have aspects from which American procedure might benefit.
The last twelve months have seen a considerable narrowing of the gap, in the sense that there is a slightly better understanding in the UK of the differences between the American system and American culture on the one hand, and ours on the other. We do not have to write off the whole system because some parts of it do not appeal. In particular, the emphasis on judicial training and the focus on lawyer competence at handling electronic documents has much to teach us. From the other end, there is a growing appreciation in the US of the benefits of our narrower definition of a disclosable document, our emphasis on cooperation and proportionality and the judicial control of cases. The similarities are at least as great as the differences. Progress is being made in increasing understanding. My ambition, I do not mind disclosing, is to bounce one off the other in the hope of helping to improve both.
This will survive, I hope, the end of the Special Relationship which, according to the New York Daily News, has died at the hands of “Brown the betrayer”. An article of 2 September about the release of the Libyan terrorist says that Gordon Brown “has given grounds to believe that today’s British are a cowardly, unprincipled, amoral and duplicitous lot. Because he is all of those”. That is a bit of a non-sequitur, I hope. Brown certainly is all of that and more, but I decline to be described as duplicitous and the rest on his account as he sits in his bunker (the imagery is deliberately chosen), chewing his nails, dithering, railing against his opponents and, so it is said, throwing portable items of office furniture against the wall. It is not as if any of us voted for him as leader. Obama may not be returning Brown’s calls but, the New York Daily News apart, Americans seem able to discriminate between Gordon Brown and the nation as a whole.
The political special relationship may have died but personal and commercial ties between the UK and the US persist. I do not think that the difference between “e-discovery” and “e-disclosure” will stand too much in the way.
A more significant point was raised in a Tweet yesterday. Is it time to ditch the “e” in e-disclosure / e-discovery and focus on just the litigation obligation to disclose / give discovery? I think it is, but I will save that for another day.