I am keen on parallels and analogies which help illustrate serious subjects by drawing on historical, fictional, cultural or any other references which may throw light on (or at least help us to remember) things we ought to know. The brief summary of US Magistrate Judge Facciola’s opinion in Davis v Grant Park on the Gibbons E-Discovery Law Alert made me think immediately of the rules of Rugby Union. There are parallels between the penalties in court and on the rugby pitch, and a side-wind brings me an Australian connection which fits my theme.
I have talked about rugby before, on the occasion of an enjoyable day out as a guest of FTI at the Varsity Match in December. That article prompted Kate Holmes of FTI to ask me on Twitter to explain the rules of rugby, an invitation I declined on the grounds that 140 characters would barely get me started. I am not really qualified anyway to expound upon the rules, but one that I do know is the Advantage Rule. I will come back to that, and its relevance to Davis v Grant Park in a moment.
The full title to the Gibbons summary is Davis v Grant Park holds that sanctions motions for breach of duty to preserve electronic communications are premature until the close of discovery. Judge Facciola refused a motion for sanctions for the alleged destruction of electronic communications finding it “premature to consider the question of sanctions until discovery ends and the court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused”. Judge Facciola cited his own decision in D’Onofrio v SFX Sports Group, Inc., where he said:
“[i]t is only after establishing the prejudice the plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent with this Circuit’s insistence that any sanctions imposed be a function of the prejudice done to a party by its offending opponent.”
I have written before about the non-US perception of ediscovery sanctions, most recently in an article called The ups and downs of US ediscovery sanctions. I said there that “To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime”, whilst cross-referring to an earlier article which made it clear (I hope) that I was alert both to the rationale behind sanctions in appropriate cases and to the fact that (as Judge Facciola himself put it in a conference speech) judges do not wake up every morning asking “Who shall I sanction today”. For all that balance and fairness, however, the outsider’s perception is that the fear of sanctions, and particularly sanctions which are disproportionate to both the offence and the prejudice, drive up the scope, and therefore the cost, of electronic discovery. D’Onofrio and Davis v Grant Park are welcome correctives to this.
The debate in this context is similar to those in criminal justice circles about the purpose of punishment and whether the priority should be compensation to the victim, retribution for the perpetrator, rehabilitation, or prevention of recurrence. The latter may involve imprisonment, removal of the right to practice or sending off the pitch depending on the context. US ediscovery has seen all of these either happening or threatened, where the UK system tends to be limited to compensation for losses actually incurred. That does not necessarily make us a soft touch – an award of indemnity costs can be pretty painful, and there is at least the theoretical possibility of losing one’s practising certificate or being sent to prison for contempt of court.
The D’Onofrio and the Davis v Grant Park cases are consistent with the UK approach under which, as the Gibbons summary puts it, “any sanctions imposed should ultimately bear a relationship to the prejudice suffered by the other party, and … such prejudice may not be discernible until the close of discovery in a contested matter”.
How does the Advantage Rule in rugby come into this? The rule itself is as follows (my source is the Wikipedia Glossary of Rugby Union Terms):
“Advantage” is the period of time after an infringement, in which the non-offending side have the opportunity to gain sufficient territory or tactical opportunity to negate the need to stop the game due to the infringement. The referee will signal advantage with their arm out horizontally, toward the non-infringing team. If no tactical or territorial advantage is gained, the referee will whistle, and give the decision that had been delayed. If sufficient advantage is gained, the referee will call “advantage over”, and play will continue. The Advantage Law allows the game to flow more freely, and not stop for every minor infringement.
The parallel is not exact, but the aims are similar – the Advantage Rule expressly allows the flow of play to continue uninterrupted just as the discouragement of premature applications keeps the focus on preparing for trial without satellite disputes which are both expensive and time-consuming, with the judge or referee flagging the potential for the matter to be revisited. As a practical matter, it is rarely possible to say at this interim stage precisely what losses have been suffered by the innocent party, and it is implicit in Judge Facciola’s words that events may show that no prejudice occurred. Like the rugby referee, the judge can wait and see what consequences flow whilst the game goes on.
The so-called “English rule” on costs means that a successful party in the UK will generally be awarded its costs at the end of a matter. What if a party wins overall but deserves punishment for some default on the way? You may care, in this context, to look at a case called Vector Investments v Williams (see Vector Investments: Party made to pay for unhelpful disclosure). The relevance of this case is that successful claimants were awarded their costs of the action generally, but a costs order in the sum of £20,000 was made against them because of their conduct of disclosure. The message in both jurisdictions is much the same – whatever the merits of the claim itself and the final outcome, a party who wastes opponent’s money by its handling of disclosure / discovery can expect to be penalised for it, at least to the extent of the prejudice suffered by the other side.
The problem with a mere financial penalty is that a party may simply factor that risk into its decision-making. Just as a rugby player may calculate that bad conduct may improve his team’s position (and that the referee may not spot it anyway) so a party to litigation may play fast and loose with the rules to save money, to disadvantage the other side, or simply to muddy the waters for some tactical purpose. In those circumstances, mere reimbursement of wasted costs is not sufficient punishment.
I was well into this article before my eye was drawn to a post on the blog site of the Australian Law Reform Commission headed Should professional conduct rules be amended to include specific legal and ethical obligation concerning discovery? What caught my eye first (with my sporting metaphor in mind) was this section:
Justice Ray Finkelstein said that doing things such as ‘giving judges greater powers to sanction misconduct, delay and so on’ is what you do if you want to ‘muck around and play at the edges, and avoid the main game’. His Honour said: Litigation is expensive enough, and the object is to get to trial, rather than punish people along the way. It really is a side issue — and not only is it a side issue, I regard it as a distraction. It will turn out to be an expensive distraction.
It is not suggested that the defaulting party in Davis v Grant Park was playing games, nor have any of the recent UK cases inspired the idea that the UK needs more disciplinary teeth specifically for discovery failures. Their outcomes – the downsides in costs and reputation, quite apart from the one which was actually lost as a result of disclosure failures – are sufficient, and I would rather focus on the commercial and tactical benefits of getting it right. Nevertheless, the Australian debate is a timely one, given how many lawyers in every jurisdiction are not grasping the point – this electronic material includes the evidence on which cases turn. Learn to manage it, apply proportionality to its management, and develop the skills to argue about what can be included and what can be left on one side, but don’t just ignore it or the rules relating to it.
Referees and judges have similar powers in the context of the matter in front of them – they can make orders which reflect conduct and which alter the flow of the game, and they can send a player off the pitch (the whole team in the case of a judge’s striking out order). Professional bodies may subsequently make orders for suspension from practice or play as a result of the underlying conduct. If litigation is not a game, it has many of the characteristics of one – rules, winners and losers, uncertainty of outcome and high stakes. Justice Finkelstein used the same analogy in the context of wider control of lawyer conduct, not just in a particular action. Sporting contests provide a useful source of illustrations about the conduct of litigation at all levels.