A high proportion of e-disclosure / ediscovery disputes in both US and UK courts arise because one or both of the parties does not know what target it is supposed to reach. This generally stems from one of two causes — they do not know the rules and they do not know what they might expect from the court in an area in which judicial discretion plays a large role.

The rules point seems pretty obvious to you and me although not, apparently, to the many lawyers on both sides of the Atlantic who fall foul of the rules each year and who do not know the cases. The consistency point is more subtle but just as significant. A solicitor once told me of a case where he and his opponents had argued (presumably expensively) for weeks before going to the court for directions. The answer came quickly and was not precisely what either of them wanted, but it cut through the argument and allowed them to get on. “If only we had known what to expect” they said, making the point that the argument could have been avoided if they had had some idea of the kind of orders available from the court. Consistency is, in a sense, antithetical to discretion, but we do need to be able to anticipate what kind of orders we might get.

These two factors, knowledge of the rules and consistency from the courts, are identified by chief US Magistrate Judge Paul Grimm in an article in the University of Richmond’s Journal of Law and Technology (JOLT). His immediate context is the two-year old Federal Rules of Evidence 502 which aimed to encourage lawyers to co-operate to reduce the costs of production of electronically stored information.

This article reached me via a posting by Monica Bay on the revived EDD Update and I refer you to that rather than directly to the JOLT article so that you get the benefit of Monica’s commentary on the way.

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