Cause and effect or why e-Disclosure is like cholera

“In Prussia the poor refused even to believe in the existence of cholera; noting that the eruption of the disease coincided with the arrival of doctors in their slums they drew the inexorably logical conclusion that the doctors had poisoned them.”

I am reading A N Wilson’s The Victorians from which this gem comes. How we laugh now that there should have been people so primitive that they should attribute their problem to those who come to cure it. It is a bit like people who blame the costs of electronic disclosure on those – judges and suppliers – who offer procedural or technical solutions to the problems.

Cholera was a new problem, first seen in India as a pandemic in 1817. Its progress round the globe can be charted from India to Eastern Asia to Persia and Russia until it reached Britain in 1837. The British epidemic of 1848-9 killed 53,000 people. The authorities were not keen to acknowledge that there was a problem at all and it  was left to private enterprise to show that the disease was not caused by smell itself but by the same things which caused the smells – a further muddling of cause and effect.

There is in the New York Museum of Natural History a screen which shows population growth from earliest times in the form of points of light spreading round the world, vividly illustrating the acceleration of the last few decades. The growth of information would show a similar pattern as, indeed, would the increase in deaths from cholera in the 19C. Lawyers seem to be rather in the position of the Prussian peasants of the 1840s, denying the existence of the problem and blaming those who offer cures.

I have heard lawyers blaming judges for trying to address disclosure issues, as if the judge was at fault for the fact that the electronic documents existed at all. I overheard a lawyer at Paddington Station a little while ago, reporting a meeting at which a supplier of litigation services  had proposed putting all the documents into a database. It was quite clear that, to the lawyer, the suppliers were the cause of the problem, not the bringers of a solution, as if the documents would somehow not exist if only he could ignore them and (presumably) the rules which apply to their management.

Cholera was tackled by identifying its cause and fixing it. We cannot readily do that with documents themselves, but we can perhaps be a little more willing to recognise both that the problems exist and that there are solutions – both procedural and technical – to handle them. We could rewrite Wilson’s sentence thus:

“In England the lawyers refused even to believe in the existence of electronic documents; noting that the need to handle electronic documents coincided with the arrival of case managing judges and e-Disclosure suppliers in their jurisdiction they drew the inexorably logical conclusion that the judges and suppliers had created the problem.”

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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 Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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