We have seen some high-profile mistakes in the discovery world recently. We should discriminate between incompetence and stupidity or oversight. A mistake is not an ediscovery mistake just because it involved electronic documents.
The mirth generated at the expense of the already much- despised OFSTED over its “stuck in the photocopier” excuse for non-disclosure has been eclipsed in Australia by the discovery that two parties have spent five years and hundreds of thousands of dollars fighting over the wrong document.
The story is found in an article called Farcical End to 5 Year Lawsuit (thanks to Jonathan Maas of DLA Piper for spotting and tweeting about this). The claim involved an allegedly defamatory press release which, on the second day of the trial, was discovered to have been merely a draft. It transpired that the plaintiff had complained about the terms of the draft and that what was actually published was a moderated version. The action had proceeded on the basis that it was the draft which had been published. The defendant, the Australian Prudential Regulation Authority, had not only admitted in its pleadings that the document had been published but had made an offer to settle the case.
We can laugh, but I have to say that I have some sympathy for all concerned. The alterations to the document were presumably trivial in extent, albeit significant in effect, and once the initial mistake had been made, it is not the sort of thing one questions. Anyone who has sat through a trial and watched with horror as the adversarial spotlight falls on hitherto unregarded documents will know how their true import and effect can suddenly become clear. If this did not happen, there would rarely be trials – their purpose is exactly that. This may be the first time, however, that the single document on which the case turned was the wrong one completely.
I have written before about the US case Bray & Gillespie which centred, in ediscovery terms, on the plaintiff’s assertion that it was not possible to produce electronically the hotel bookings data upon which the claim (for lost bookings revenue) was based.
It was already clear when I first wrote about it (see How would Bray and Gillespie play in the UK? ) that the relevant data (and it was certainly relevant — this was not merely a matter of formal non-compliance with the rules) was in fact held in an easily-accessed database.
We now have the end of the story, courtesy of Ralph Losey’s account The Bray & Gillespie Saga Ends with an Incredible Story of a Phone Call. It is worth setting out the judge’s account, copied from Losey’s post:
Plaintiff’s most recent substitute counsel, with the assistance of Plaintiff’s computer forensics expert, made a simple telephone call to the software provider and reviewed the IQ Ware computer software system used to capture and produce room folios for the Treasure Island Resort Property and learned two significant and incredible facts.
First, Plaintiff, despite all previous demands and court orders for this discovery and despite being under threat of having its entire case dismissed and its counsel severely sanctioned, had never even consulted its software provider to attempt to retrieve the archived documents. Second, the archived files are likely retrievable with minimal effort and at minimal expense and could likely render all folios available for review for the relevant time period — some two years and four months after they were first requested for production by Defendant in discovery and some twenty months after Plaintiff was first ordered by the Court to search thoroughly for and disclose the folio files.
Thus, on December 3, 2009, during the Evidentiary Hearing, Plaintiff for the first time disclosed the likely existence of additional Treasure Island room folios and asked that it be allowed, without sanction, again, to cure its abject failure to make complete review and production, claiming that the folios can likely be produced if discovery is, now on the eve of trial, reopened and extended for another four to six week period.
Alert readers will speedily identify the connection between this story and the OFSTED “stuck in the photocopier” story. Whilst the one involved a failure to make a simple investigation as to the technical (or, as it turned out, not very technical) implications of extracting data, the other seemed to involve incompetence at a simpler and more fundamental level with a photocopier’s paper feed. Neither involved anything very complex – that is the connection.
It sticks somewhat in the throat to say this, but I have more sympathy with the OFSTED paper-shufflers than with the Bray & Gillespie lawyers. Whilst I do not for one moment believe the “stuck in the photocopier” excuse (there, I have said it), any of us may be guilty of oversight – and we have to assume that the yarn about the photocopier is cover for some other oversight, since we are not yet ready to suggest any other reason for the failure to produce the documents. Well, I am not. Not publicly, anyway.
As with the wrong document in the APRA case, once the critical moment has passed, it is hard to see how the defect would be spotted. You overlook a little pile of documents (about 2 feet high I estimate) amongst so many other documents, and you move on. If you are giving paper discovery, how would you (or anyone else) notice?
The Bray & Gillespie story is of a different kind. The lawyers (of whom there appears to have been a succession) knew what data was involved and knew where it was. Their error was to assert that it was not recoverable when, as we now know, a simple phone call would have shown them at the outset that it was easily accessed. That call could have been made at any point in the continuing story of argument over the bookings database
There is a link from here to Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) where the defendants’ error (for which they were penalised in costs, the nearest we get to sanctions in the UK) was to make an assertion as to the recoverability of documents without being able to show that they had even tried.
Much of the objection to electronic disclosure / discovery is founded on the assumption that it is unduly difficult or expensive or that deep technical knowledge is required to achieve it. Even when true (and it often is true), the mere fact that something is difficult is not a reason for simply ignoring it. The rules, in the UK, Australia and the US alike, make provision for genuine arguments to the effect that it is disproportionately expensive to give disclosure / discovery. The mere assertion is not enough, and parties are required to set out the factors which allow the court to weigh likely value against probable cost.
The failure to do this is patent, that is, opponents or the court ought to be able to detect and challenge the argument or absence of argument on the subject. That is what case management conferences are for and that is why the disclosure statement is important, since that is where the arguments and facts should be set out. That is where an assertion of the Bray & Gillespie type ought to be attacked at an early stage if opponents and the court have the wit to do it.
There is no such opportunity where documents are simply not disclosed because they have been “stuck in the photocopier” or where all parties fail to spot that the key document is not what it appears to be. That is just negligence, or possibly gross negligence – culpable enough, but not a hanging offence. The Earles-type assertion is really an error of judgement – making the wrong call in assessing proportionality. Asserting that something is not possible when a simple phone call would prove otherwise, as happened in Bray & Gillespie, is heading towards the bad faith end of the scale.
Bray & Gillespie is the only one of my examples involving an e-disclosure / ediscovery point, that is, where it was the electronic nature of the data which tripped the lawyers up. That is not the distinction I am looking at here – it is all discovery / disclosure. Bray & Gillespie differs from the others not because it involved electronic documents, but because one can see no excuse for not picking up that telephone on day one.