An “angel” in theatrical terms is someone who puts money into a play or film. Many productions would not happen without such support. I have already mentioned the judicial play which we are putting on at LegalTech and which consists of light-hearted scenes based largely on recent UK e-disclosure cases. Epiq Systems and Huron Consulting Group have kindly given the support which makes this possible.
The play – really a series of loosely-linked scenes – is an adapted version of something we did at IQPC in London last May and which, despite the levity, has the serious purpose of creating a better understanding on each side of the Atlantic of what happens in the other jurisdiction.
We have an all star cast. US Magistrate Judge Elizabeth LaPorte and US Magistrate Judge Andrew Peck play a composite judge called Fluffy. Fluffy may sound a soft touch, but those who know the first Harry Potter story will know that Fluffy is extremely fierce and guards a mystery which no one else understands.
There is, in fact, a subliminal point about Anglo-US terminology here: that book was called the Philosopher’s Stone when published in England but was re-named the Sorcerer’s Stone in the US version, apparently because the US publisher thought that children would be put off by the word “Philosopher”. US distributors have a habit of under-estimating their public (is it really true that the film of Alan Bennett’s play The Madness of George III had to be called The Madness of King George because of the fear that American audiences would think that they had missed the first two films in the franchise?). Much the same patronising logic underlay the 1999 UK rule change which abandoned the word “discovery” in favour of “disclosure”. The point is not that this jettisoned several hundred years of tradition, but that the word “discovery” embraced both the “uncovering” of your documents to opponents, and the prior, and very much bigger, exercise of finding out what you have. The proper term therefore became more, not less, appropriate as search became the dominant requirement. Those of us with feet on both sides of the Atlantic must refer continually to both terms.
The UK judges taking part in the play are Senior Master Whitaker and His Honour Judge Simon Brown QC. They are cast as advocates called simply Whitaker and Brown, allowing a self-referential loop because they (the real ones) are the authors of two of the judgments on which the play relies, and Master Whitaker leads the working party which produced the recent E-Disclosure Practice Direction and Questionnaire which also feature in the play.
The cast list also includes forensic expert Craig Ball who has gamely agreed to take the parts of a technology salesman and of a lawyer who has been scarred by his bruising encounter with Fluffy.
I will open with a brief summary of the relevant differences between the US and UK discovery regimes together with a brief explanation that the same person is my Lord or your Lordship in his court, Mr Justice Smith when referred to in his formal capacity, and plain Sir John Smith in private life. The idea that the same man can be “Mr”, “Lord”, and “Sir” depending on the context goes some way towards explaining why Americans are confused by British titles.
Those who want a fuller explanation of the UK e-disclosure context may like to read a detailed paper which I wrote with Nuix last year which is called E-Discovery data-processing is a critical bottleneck in litigation and which focuses on those few documents which would actually help a fact-finding judge to find the facts on which the decision will turn. I pick the Nuix paper because it was the most detailed one I wrote, but I wrote one with Clearwell which focused on the Practice Direction. You may care also to read up about the UK cases and the new Practice Direction itself
The background reading is not compulsory. The play will be performed as a Plenary General Session on Wednesday 2 February at 12.15. It last only an hour, including my introduction, and there will be time for questions at the end.