Having just published an article about whether electronic disclosure is needed in all cases, I turned to Ralph Losey’s blog to discover that he had just published an article about whether electronic discovery is needed in all cases. We do have fun on our Sundays, don’t we?
My article is called How would Bray & Gillespie play in the UK?. The references in it to the propriety of making informed decisions against e-disclosure are a mantra which I often include to make it clear that electronic discovery / disclosure is not the inevitable outcome; the target is the right decision and the proportionate decision, and such a decision cannot be made without weighing and costing all the options. Ralph Losey’s article is called Paper or Plastic? The Wisdom of Supermarket Bag Boys and the Need for Local Rules which explores, amongst other things, the extent to which the obligation to discuss e-discovery at a Rule 26(f) conference can properly be discharged by a cursory agreement to opt for paper; the alternative, plastic, is seen as being:
where you waste a ton of money paying vendors to chase down unimportant ESI and pay young lawyers to read emails about what people had for lunch, which are then produced to each other on plastic CDs.
Ralph asks “Is there a conspiracy among attorneys, officers of the court, to disobey the very rules that they have sworn to uphold?” and concludes that he is not willing to go quite that far – yet. There are others in the US who would say that, and I used almost exactly the same words, mutatis mutandis, on my first outing before British judges two years ago, with the tactful rider that judges often made themselves silent co-conspirators by not making sure that the right questions had been asked. Ralph puts the same point this way:
[Judges] approve by their silent acquiescence. Not all do, of course, a few e-discovery oriented judges speak out, and speak loudly, but they are a small minority. Most judges just look the other way.
It is a perfectly proper outcome of the obligation to discuss electronic sources that the parties agree to give disclosure / discovery on paper, as long as the discussion took place and on an informed basis. Like me, Ralph advocates lawyer education. Unlike me, he advocates local rules (that was, in fact, my first suggestion when I originally climbed into this pulpit, to be told from on high, and in no uncertain terms, that the ambition should be to encourage best practice everywhere not the proliferation of local rules; so that is what I have done).
Ralph Losey identifies the same evil as I did in my article – that lawyers often realise rather late in the day that they do in fact need some of the electronic data which they were happy to ignore at the outset. As Ralph puts it “…lawyers often change their minds half way into the case. They are sometimes forced to pull their head out of the sand, or wherever it is, and start asking for emails and the like”. I love that “or wherever it is”.
The same point was made by the judge in Bray & Gillespie in these terms
[T]hat’s going to require some hard look-see, talking to your clients and whatnot and making sure that you’ve gathered what you needed to gather, corrected anything that needed to be corrected, added anything that needed to be added. As I’m sure you gather, the purpose behind it not only is to have all these facts assembled by the close of fact discovery, but also to lock everybody in to those facts so that we don’t find several months down the road that, oh gee, we forgot to tell you about this person or that person, whoever it may be.
That is as succinct an explanation as you could want as to the justification for as much certainty as possible at an early stage.
I will leave you to read for yourself the cases to which Ralph Losey refers. Whatever jurisdiction you practice in, these cases have messages worth reading. If your time is limited, settle for the summaries of Judge Facciola’s strictures in Covad Communications v Revonet and the words of Judge Maas about the value of early discussion in the Aguilar case. A few moments more will allow you to skim the summary of Valeo Electrical Systems v Cleveland Die where you will find a warning about making uninformed agreements to accept documents in a format which is useless to you. It does not matter if you do not understand the terminology being used in these case summaries; all that matters is the message that informed agreement at the outset can save costs and embarrassment later.
Ralph’s article ends with a suggested checklist by which parties may satisfy the court (and, almost incidentally, themselves) that they have properly discussed everything which ought to be discussed before expense is incurred going down what may prove to be the wrong road. Before you dismiss these things as American (and therefore, by implication, irrelevant to you) consider two things: firstly that there is a proposed Edisclosure Questionnaire intended to be included in the CPR from early next year (which I know about because I helped draft it); secondly, that the most significant case involving a party going down the wrong road, and having to re-trace its steps at great expense, is not a US case but an English one. That is exactly what happened in Digicel v Cable & Wireless.
Digicel was a big case, with much at stake, many documents, top-flight law firms and two barristers on each side. The expensive difficulties which arose in that case, and in particular the wasted journey down the wrong road, arose precisely because there was no discussion at the case management stage, and “silent acquiescence” (to use Ralph’s words) in that by the judge. It is tempting to think that its implications do not extend to “ordinary” cases. They do, not least because Paragraph 2A.2 of the Practice Direction to Part 31 requires discussion just as Rule 26(f) of the FRCP requires it. Neither rule specifies what the outcome must be, merely that the discussion must take place. The parties and the judge may well decide as a result of the discussion that paper disclosure is right and proportionate, but how can they tell if they have not had the discussion?