The only book in my office, apart from battered copies of the Concise Oxford Dictionary and Roget’s Thesaurus, is the first edition of Butterworths’ Electronic Evidence.  When I got it, I had no particular interest in discovery anywhere but in the UK (which is why my business is called the e-Disclosure Information Project, not “e-Discovery”) and I rather ignored the non-UK sections which comprise the bulk of the book. It saved me from embarrassment on the day it arrived – I was doing a live webinar and did not know the answer to a question thrown at me by a delegate; a quick scrabble through the index gave me something to say.

I made contact with its General Editor, barrister Stephen Mason who, in due course, invited me to contribute to a chapter in the second edition. That has just been published, which is why the subject comes up now.

My bit is the England & Wales part of Chapter 7 The Practical Management of Electronic Evidence, in which my co-contributors include people I know like Sandra Potter from Australia, Dominic Jaar from Canada and M James Daley (of Sedona fame) from the US. Other contributors whom I know or have met include Iain Mitchell QC (Scotland), Seamus Byrne (Australia) and Bryan Tan (Singapore). The introduction is by Chan Sek Keong, Chief Justice of Singapore.

Stephen gave me a free hand as between the elements which come under the heading “Practical Management”. I opted for a rules-based approach consistent with my general  message – that proper use of the rules and, in particular, the co-operative obligations of both the overriding objective and the practice direction to Part 31 CPR, when taken with the court’s management powers and the use of informed judicial discretion, would bring down the costs of the by now inevitable obligations to disclose electronic documents. My sections ends:

Until the lawyers establish what is possible and what the costs are, and until judges make use of their powers to make them do it, the handling of digital evidence will inevitably be badly done and more expensive than it needs to be.

It is a novel experience for me to have an editor, and I am prepared to fight in the last ditch for my own wording. Stephen Mason’s suggestions were given with a light touch and, on the whole, accepted.  It appeared at one point that some aspect of my punctuation offended some over-arching principle of the publishers, and if you find that my section differs from the rest in this regard, it is because, with gritted teeth, I spent half a day identifying changes and restoring or removing commas and semi-colons. The other thing I am not used to is complying with other people’s deadlines, and demands for things “by tomorrow” leave me cold. Publishing, I now know, lives by seeking to impose deadlines on others.

I have not yet had the chance to read this book’s 812 pages. It will be a good preparation for next week’s international ediscovery conference in Hong Kong if I read some of them on the plane.

I commend Electronic Evidence. Its very title reminds us that the business we are engaged in is the old-fashioned skill of finding and presenting the evidence upon which a court makes a decision. The content and the manner of delivery and storage changes, and quickly, and we must adapt with it. The subject embraces legislation, case law, procedure and, unavoidably, some understanding of the technology. This book brings them all together.  Even if its multinational ambit is not important to you, it is worth having a copy for the sections about your own jurisdiction.

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