There is much emphasis in these pages on the fact that discovery of documents (“disclosure”, for some reason, in England & Wales) is a common law tradition not found in civil law jurisdictions such as those of mainland Europe. We tend to discuss e-discovery / e-disclosure as if it were merely a method of complying with the rules, and may overlook the reason why discovery plays such a large part in common law civil court proceedings.
We have discovery because the documents are usually the best source for the facts. Oral evidence and deductions, however well-intentioned or carefully arrived at, are no substitute for the documents which evidence what people said and thought at the time. If discovery is now an even bigger component of cost than it used to be, that is because of the ease with which we can create and disseminate recordable information, and not, as some seem to think, because rule-makers and technology suppliers have conspired to exaggerate the problems and the cost.
The Dubai International Financial Centre (DIFC) could presumably have chosen any model when it defined the dispute resolution processes for its court. One assumes that it is the primacy of contemporaneous written evidence which led it to adopt something very similar to the common law discovery processes (the court is in any event expressly established as a common law forum).
An article in The Gulf Today of 20 October headed DIFC courts initiative provides coaching in e-Disclosure domain reports on a panel moderated by Nigel Murray of Trilantic, which has recently opened an office in Dubai. The panel comprised Steven Whitaker, Senior Master of the Senior Courts of England and Wales, Queen’s Bench Division, Sir Anthony Evans (former Chief Justice of the DIFC Courts) and Graham Lovett, Managing Partner of Clifford Chance Dubai.
Electronic disclosure is on the agenda as the DIFC considers changes to its rules. England & Wales is the jurisdiction most recently to have adopted a new e-Disclosure Practice Direction, and Master Whitaker, who led the working party which drafted the UK Practice Direction 31B CPR, has more experience and knowledge of worldwide e-discovery practices than any other judge. He was the obvious choice to take part in the panel; his message, unsurprisingly, was that “parties to litigation [must] familiarise themselves with the developing technologies which reduce the burden and expense of handling huge volumes of documentation”.
It is perhaps not entirely fair to say (as I once heard somebody say) that if you want cheap litigation then go to Germany but if you want justice go to the UK. The discovery tradition is an element which simultaneously tends towards justice whilst inevitably increasing costs. The game is to reduce those costs without diminishing the justice. Making changes to the established rules and procedures is a non-trivial business, as those of us involved in the UK Practice Direction can attest. All jurisdictions are, quite rightly, watching the progress made by others who share their problems and their values. Australia, Canada, Singapore and the UK have had, or are contemplating, procedural changes which take account of both their own experiences and those of other jurisdictions. The DIFC approaches the subject at a good time in terms of these worldwide developments.