I was, I think, the only UK speaker (or, indeed, delegate) at the Georgetown Advanced e-Discovery Institute. If the primary reason for going was to talk about US-EU differences, there was progress made too on the continuing US-UK dialogue about our respective disclosure rules and practice. There is two-way value in seeing how others see us.
A great deal of ground was covered, much of which illuminated the divide between US and UK practice and procedure. I make no apology for the fact that the result is a rather longer article than my usual ones.
The Georgetown Advanced e-Discovery Institute is a polite, learned event, some of whose sessions, one feels, may actually change things, not merely report or comment on them. There is certainly a mood for change, in the sense that no-one involved in US eDiscovery believes that the present approach is sustainable. An outsider sees what appear to be obvious places to start which inevitably centre round the points of differences with one’s own jurisdiction and, indeed, the UK rules came in for much positive comment, as I report below. We in the UK, in turn, need to raise the level at which we discuss the issues, and get more people, particularly judges, to engage in that discussion in the manner so impressively displayed at Georgetown. We might then see a convergence between our rules and the way they work in practice.
Any attempt to translate these thoughts into positive recommendations founders on deep cultural differences plus the knowledge that whilst the UK rules may be fit for their purpose, the practice has a long way to go. Do US lawyers and jurists bang on so much about ethics and keep each other in line with sanctions because they are more ethical than we are or less so? Do parties collect so much data because a) they really think that proportionate justice is to be found that way b) because the fear of being sanctioned has driven all reason out of litigation or c) because the lawyers and technology providers make a lot of money that way? Or is it just that the wheel is going round so fast – technology catching up with volumes and driving expectations – that no-one can stop it now?
And is it presumptuous of us from the UK to accept praise for our rules and for the proportionate spirit behind our rules, when so few UK judges take e-disclosure seriously, when parties in big UK cases can still assert that the disclosure of electronic documents is ipso facto disproportionate, and when we have just had to fight a long hard battle to persuade our Civil Procedure Rule Committee even to accept that the subject is worth raising?
Whilst the English say “electronic discovery is something Americans do, and look what a mess they make of it”, Americans say “England is two years behind the US”. Well, I for one will not disparage the US approach any more severely than they do for themselves, and if a two-year lag saves us from the worst excesses of US discovery, then can we have longer please? The reality is that we can both learn from each other. The dream combination, perhaps, would be the rules of England & Wales managed by the array of US judges who were present at Georgetown. My view is obviously a partial one.
I will try and pick out the subjects which have most relevance across the jurisdictions, either because there are parallels, or because their absence is itself a matter of note.
This panel had the foreigners on it – me, Dominic Jarre from KPMG in Canada and Seamus Byrne from KordaMentha in Australia. The home team was represented by Amor Esteban from Shook Hardy & Bacon and the moderator was Browning Marean of DLA Piper US. Although the session was entitled “Not Just EU Privacy”, much of our time was spent on this area where mutual disdain becomes outright hostility. There is no easy answer when US courts expect compliance with their discovery orders and EU rules impose penalties for doing so.
Amor Esteban gave us a succinct summary of the problem, beginning with the Aérospatiale decision with its analysis of US interests derived from the Restatement (Third) of Foreign Relations Law of the United States. He rebutted (or “refudiated” as Sarah Palin would say, in a useful term which is likely to outlive her own political career) the suggestion that US courts always find in favour of “US interests” and against the foreign rules. I asked if anyone had applied their minds to whether “US interests” meant “the interests of the US party in the litigation” or something wider, and put in a plea for proper use of the Hague Convention instead of rubbishing it as US courts seem to do (I know, I know, “rubbish” is not a verb, but it perfectly describes some of the views expressed in US Opinions when this subject comes up). Dominic Jarre drew attention to Canada’s position – geographically close to the US and EU-approved in EU data protection terms. US Magistrate Judge Andrew Peck reminded us from the audience that those who use US courts, particularly as plaintiffs, must expect to play by their rules, or at least factor the conflicts into their decision-making. The same applies to those who are quite happy to send data to the US in the ordinary course of business, and complain about privacy only when discovery is required, particularly when this revelation strikes them only when they are en route to court to fight about it.
Those of us from foreign parts described briefly what was happening in our own jurisdictions, in my case the new (1 October) eDisclosure Practice Direction and Electronic Documents Questionnaire.
We dotted about a bit – the approach which encourages dialogue between panellists is hard to reconcile with the linear format of a pre-arranged set of slides – but we got some nice comments afterwards. I learnt something anyway: if wearing a microphone clipped to your tie, turn it off before blowing your nose, unless you actually want to bring the sounds of the Serengeti to the conference hall.
2010: A Sanctions Odyssey
Here is a subject which causes much incomprehension between jurisdictions. To a US lawyer, ediscovery sanctions are what keep you awake at night. Providers of software and services use the threat of sanctions to encourage that pen across the bottom of the order form; if none of them has yet produced an advertising picture with an axe breaking through the door to the cry of “Here’s Shira”, it can only be a matter if time. The English just gape at them; you mean you get fined massive sums of money because you didn’t send everyone in the company a legal hold letter? Because you overlooked a box of old tapes?
The two biggest sanctions cases of 2010 have been Judge Shira Scheindlin’s Opinion in Pension Committee and Judge Lee Rosenthal’s Opinion in Rimkus – see Dueling Opinions: Scheindlin’s Pension Committee vs. Rosenthal’s Rimkus for an explanation and full citations). As the article’s title implies, it has suited the commentators to portray the subject as a conflict of opinion between two forceful judges. This being Georgetown, both Judge Scheindlin and Judge Rosenthal were on the platform; anyone hoping for a fight was disappointed.
Americans have rather more respect for senior office holders – judges, public servants and politicians — than we do, or respect at least for their offices, and it has been mildly amusing to an outsider to watch the legal establishment in its various forms implying, without actually saying so, that Judge Scheindlin might, you know, perhaps, have gone a little over the top in Pension Committee. An outsider can be less restrained and say that, whatever view you take of the decision, Pension Committee has elevated the fear of sanctions to the point where they have driven out proportionality. What competent lawyer, in-house counsel or external law firm, will run the risk that they will fall short of the standards expected of them? The argument is made more complex by the fact that many lawyers are simply incompetent and fail to meet the standards for that reason; others have motives for concealing documents which, again, need to be punished; yet others do very nicely, thank you, from the work apparently justified in the climate of fear; the plaintiff bar has every reason to exploit the nervousness for tactical reasons. How does one strike a balance between keeping such people under control without frightening the competent and conscientious into over-broad discovery? The question is all the more interesting when asked from the standpoint of a jurisdiction whose mantra is that you do not need to look under every stone?
Judge Scheindlin is evidently aware of the feelings which she has aroused – she was at pains to point out that she had only ever made two sanctions orders, adding “and you all know which they are” (the other one, for those who live under stones instead of just searching under them, was Zubulake).
Did the failure cause prejudice? Is it central or tangenital? Is it curable? Some of these cases – Judge Scheindlin mentioned Southern New England Tel. Co. v. Global NAPs, Inc., 251 F.R.D. 82 (D. Conn. 2008) specifically (see the K&L Gates commentary here ) – have what Judge Scheindlin called “terrible facts”. They distort the case, she said, and increase both the time and cost and the likelihood that the case will go to trial. Cases involving conduct, affirmative misstatements, deception and lying gave rise to the “jurisprudence of anger”. The actual statistics do not suggest that sanctions judgments are widespread – if you remove the obvious bad ones, the number is very small. Judge Rosenthal said that the fear of sanctions was worse than the reality (although this article might suggest otherwise).
What Judge Rosenthal said ties in with a speech which I heard Judge Facciola give last year at which he said (I paraphrase) that ‘judges do not look in the mirror each morning and ask “who can I sanction today?”. There is a tension between the need to punish wrong-doing or incompetence and the burden on the conscientious lawyer who wants no more than to do what is right for his client, the court and the case – or, perhaps, wants to do no more than what is right, a subtle rearrangement of words which alters the perspective somewhat. The question ought to be “what is the minimum needed for the case to be decided justly?” not “what must I do to avoid the risk of sanctions?”
For those who are interested, incidentally, the judicial authority for the UK idea that you do not look under every stone is in Nichia Corp v Argos Ltd  EWCA Civ 741 (19 July 2007) at paragraph 50 as quoted approvingly at paragraph 46 in Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors  EWHC 2522 (Ch) (23 October 2008). Both of these cases refer to decisions of US courts. See also Rybak & Ors v Langbar International Ltd  EWHC 2015 (Ch) (09 July 2010) for an example of what Judge Scheindlin would call “terrible facts” warranting striking out in the UK.
Ethics Game Show: Some Real World “E-thical” Issues
Two things caught my attention about this session: one was the mere existence of a full session devoted to ethics, giving rise to the question posed at the head of this article – do US lawyers pay more express attention to ethics than we do in the UK because they are more ethical than we are or less so? The other related to the session format which was an interesting way of involving the audience in the discussion.
The panel included Judge Francis, Judge Grimm and Judge Facciola (shown above), and with former Judge Ron Hedges as the scorekeeper and Maura Grossman drafted in at short notice to moderate. The format involved real stories which raised ethical issues, with three contestants vying to give the highest number of correct answers and the audience taking part with a show of hands. The stories were quite fun: the proper course when your opponent sends you an e-mail which his fat finger clearly intended for someone on his own side; the husband who guessed his way into his wife’s law firm’s e-mail system (did they make it too easy?); the district attorney who removed more than 2,000 e-mails from a collection which was the subject of a court order (or the legal equivalent of “the dog ate my subpoena” as someone put it). The actual answers were a matter of record. Getting them right was complicated by the fact that the ABA code of ethics had been varied or adopted in part by different states; sometimes, a conflict of law analysis is required if two states were involved.
In general I found myself voting for the higher end of the punishment scale – only two years suspension for hacking another firm’s e-mail system? I got no closer to deciding why US lawyers devote more time to the discussion of ethics than we do – a cynic suggested to me that this was because there is a compulsory paper on it, but this gets us no nearer to deciding why it demands such attention. In fact, ethical questions concern UK lawyers no less than their US counterparts, and the Solicitors Regulation Authority publishes the outcomes of disciplinary hearings. I have just never seen a panel about it, still less a game show. It was a great format anyway, and one which I may well adopt elsewhere.
My photograph shows the impressive tally of knowledgeable judges who were present for this event, which closed the conference. From the left they are Judge Slights, Judge Rosenbaum (retired), Judge Nolan, Judge Grimm, Judge Francis, Judge Peck and Judge Allegra, with Judge Facciola moderating. The session was unscripted, based on questions from a floor which was still packed despite the Friday afternoon timing.
I cannot type fast enough to keep up with all the good stuff which poured out of the panel and will content myself with two points, judicial education and comparisons between the US and UK rules.
The panel was asked what advice it would give to lawyers facing judges who do not understand electronic discovery. We in the UK do not have the first option which was given – that you can opt to go before a Magistrate Judge. I am in a minority (possibly a minority of one) in thinking that the UK needs a special cadre of judges interested and trained in all aspects of e-disclosure. Lord Justice Jackson recommended, somewhat optimistically, “the training of judges who will have to deal with e-disclosure on the bench”. Apathy would have doomed this one, even if budget cuts had not got there first. His other idea, floated merely as a suggestion, was for a body of “e-disclosure assessors”; that has not been pursued, so we do not know what rock it would have foundered on.
The sensible alternative, the judges said, was simply to explain the position to the judge in terms which he or she can understand as one does with any other aspect of a case. Most judges are intelligent people who have spent their lives quickly picking up new facts and concepts from scratch and they should be able to pick up the technical, practical, legal and budgetary implications of an e-disclosure issue. The real question is whether the lawyers can explain it to them. If they cannot, then what does that say about their evaluation of the risks and costs – the elements of proportionality?
It was suggested that local bar associations might offer training for judges which, by coincidence (or perhaps not), parallels a similar suggestion made earlier in the week at a London conference by HHJ Simon Brown QC to the effect that law firms might invite judges to their in-house training sessions. We can’t do that, someone said to me in London later – the judges will be worried about perceived bias if they go into a law firm to be told about case management. Well, take your choice, judge – risk generalised imputations of hypothetical bias or stay ignorant of this most expensive aspect of case management.
This session became even more interesting when the subject turned to comparisons with the UK system, and specifically to the idea of narrowing the selection of documents put into play. There is an apparently irreconcilable conflict between the UK lawyers’ duty to hand over everything, good or bad, without first fighting over a request, and the US understanding of the adversarial system which militates against this – how can you be on your client’s side and yet hand over all his documents without a fight?
Judge Peck said that this works in the UK “but that is because they have been doing it for an awfully long time” It needs a culture change, he added. Judge Allegra said that he had sat with Master Whitaker on a London conference platform and concluded that the “two systems came from different planets”, and not just because of the UK system that the loser pays the costs. The Birmingham costs pilot, launched by Lord Justice Jackson and promoted forcefully by HHJ Simon Brown QC was mentioned with approval, with its idea that a budget is set which is not to be exceeded without good explanation.
Reference was made to the idea of finding the most important documents first, referred to by Master Whitaker in Goodale & Ors v The Ministry of Justice & Ors  EWHC B41 (QB) (05 November 2009), and the question was asked “How many are using those tools, and are judges willing to approve their use?” The answer, of course, is that a large number of US law firms are using predictive coding and similar tools and could not manage their clients’ documents proportionately or at all if they did not.
I take some of the credit for the dialogue between US and British judges which has led to a better understanding on both sides of the other’s systems – it was me who, with Guidance Software, established the US-UK judicial panel at IQPC in London, the third of which, next May, is being planned as I write. It did not seem right, however, to leave the Georgetown audience with the impression that we in the UK have come anywhere near to resolving the problems of electronic discovery, and I took the microphone to say so.
I was, I said, delighted to hear such an august company refer favourably to a UK system which had interested no-one (at home or abroad) three years ago. I believed strongly that we had a system of rules which, if properly used, had the potential to reduce the volumes of electronic disclosure substantially without prejudice to justice, but I wished it to be understood that our practice is not aligned with the rules which we have had in some form since 2005. I said that we had the same issues as to judicial education as had been described earlier in the session, and that the two judges who had been named, Master Whitaker and HHJ Simon Brown QC, were more or less on their own as advocates of proper case management of disclosure (this is not the same, I should stress, as saying that they are the only two who manage discovery properly, but few other judges have had the opportunity, even if they had the inclination, to become acquainted with the role which technology has to play in the managing large volumes of documents proportionately).
The session was a great end to the conference, simultaneously witty, knowledgeable and practical. Its closing subject gives me encouragement in my idea that there is value in exporting our ideas, not in any missionary sense, but because the resulting debate may lead us all closer to a solution which more successfully marries the demands of justice and the hard economic facts.
It is none of my business how US courts and lawyers chose to manage their litigation. My original interest was derived from the refusal of many UK lawyers to engage with the subject at all because, they said, electronic discovery was a US concept which “proved” that e-discovery is an overly expensive game. Expensive it often is, but that reflects the volumes of documents which exist and must be dealt with, for that is where the evidence lies. In the same way as US lawyers are beginning to recognise that the UK has rules worth considering, so UK lawyers are beginning to understand that the US experience is worth studying.
It was a privilege to be invited to speak at the event and to take part in the high-level discussions, formal and informal, which I enjoyed there. I look forward to resuming the UK-US judicial dialogue at IQPC in London on the 10th and 11th May 2011.
PS: I will be writing separately about the Judges’ Guide to Cost-Effective E-Discovery by Anne Kershaw and Joe Howie which was launched at Georgetown. It deserves more than a mention in a 3,500 word article.
Dan Regard acknowledges congratulations on the birth of his daughter from Theresa Beaumont, Judge Allegra, Tanya Forsheit and Jason Baron