Co-operation, calendars and change: eDiscovery parallels from Trafalgar

A strutting, ambitious Frenchman with platform heels and an attractive wife wants to make all Europe subject to French bureaucracy. A union of European states wants to take all Britain’s assets and make her people obey foreign laws. The British government has cut back on defence spending and is in no shape for war.

Yes, it is 1805 (what did you think I meant?). The short-arse Frenchman with the elegant wife is not Sarkozy but Napoleon Bonaparte, a strategic genius and master of tactics, whose Grande Armée is encamped at Boulogne within sight of the English shore. He has already once embarked his army into the barges which are to take them across the Channel, but the wind dropped and, besides, the Royal Navy rules the Channel and the combined French–Spanish fleet is blockaded in Mediterranean and Atlantic ports. This is just as well for the British, since defence spending including, crucially, ship building, was cut after the Peace of Amiens in 1802 and the voters are not willing to see their income tax increased. It takes a long time to build a ship of the line and the strongest force on the south coast consists of farmers with pitchforks.

I have been reading Nicholas Best’s Trafalgar, a lightweight but entertaining history of the Battle of Trafalgar of 21 October 1805. Three ediscovery / e-Disclosure parallels came to mind as I read it, one to do with cooperation and mutual interest in mid-battle, one topical one to do with the penalties for a mis-reading of the calendar, and one longer term parable about old technology being replaced by new. There are other parallels as well – we are now largely subservient to European bureaucrats, a Portuguese President of the European Commission has just demanded yet more British tribute money to subsidise the rest of Europe, and the most recent defence cuts leave us in much the same state of preparedness for war as we were after Amiens. I do not claim deep insights here, merely some Sunday evening reflections.

Cooperation in mid-battle

All jurisdictions which require discovery are developing, albeit rather slowly, the common-sense idea that parties must cooperate as to the scope and mechanics of discovery, agreeing what is to be disclosed and how that is to be done at the lowest cost consistent with the proper interests of the parties and of justice. We do not do it very well in any of the relevant jurisdictions, partly because litigation lawyers are constitutionally opposed to any kind of cooperation, partly (in the US at least) because the fear of sanctions drives ever larger discovery as a purely defensive matter, and partly because judges do not manage this aspect of their cases at all well.

The political context of 1805 was similarly not conducive to co-operation. Napoleon had staked everything on defeating Britain, and Britain’s back was to the wall. No quarter could be expected on either side. The motivations were not merely national and patriotic; substantial prize money awaited those who captured ships, enough for an admiral to own a landed estate and for a seaman to buy a pub to which he could retire. Not least was the incentive to survive – to kill as many of the other side as possible and to come through intact oneself.

Admiral Lord Nelson was to sea tactics what Napoleon was on land, and had an expensive mistress to maintain in Lady Hamilton. He had lost an eye and an arm by leading from the front. A chieromant had once told him that she could see nothing of his life beyond 1805; it was already late October as the two sides closed for battle, and a mixture of patriotic duty, the need for cash, and a sense of impending fate were compelling drivers for Nelson.

The conventions of sea warfare would put two fleets broadside on to each other, battering each other with cannon ball and grapeshot before closing with grappling-irons to board and claim the prize. Nelson’s novel tactic was to drive two parallel columns of ships into the Franco-Spanish battle line, splitting it into three. His ship, the Victory, led one column and Nelson insisted on staying in front, shouting to the Teméraire to drop back when it threatened to overtake. The Teméraire, launched in 1798 and named after a French ship captured in an earlier war, turns up twice more in our story.

The tactic of splitting the line allowed the British first to fire a broadside through the unprotected stern of an enemy ship, and then to turn to port or starboard right up against it for a second broadside. Skipping the details, the upshot was that four ships, alternately British and French (the Victory, Redoubtable, Teméraire and Fougueux) found themselves lashed together in a row, all facing the same way. A fire broke out on the Redoubtable and British sailors were sent to help put it out, climbing in through one of the gun ports from a small boat. The French welcomed them and they worked together to extinguish the fire which otherwise threatened to spread to all four ships.

It is a good example of parties cooperating in their mutual interest despite the fierceness of the fight around them. Whilst self-preservation may have been the dominant motive, there was a cash implication as well – the Fougueux had already surrendered and the Redoubtable was on the point of doing so, giving the British a contingent interest, as it were, in their survival as prizes. A party to litigation has a similar interest in ensuring that the costs of the fight do not exceed its value. Under the so-called “English rule” of costs recovery, the winner expects the loser to pay its costs; prize money was the equivalent of such reimbursement.

Problems with calendars

You may have read of the unfortunate US lawyer who missed an appeal time limit by one day because he was confused by his Outlook calendar. If not, the story is here. The Appeal Court held that use of basic technology like a calendar should be part of a lawyer’s skill-set and declined to relieve him of the consequences of getting it wrong.

Baulked of his summer invasion plans by the failure of his fleet to arrive, and with the weather now against him, Napoleon turned on Austria. British Prime Minister William Pitt had paid hard cash for an alliance with Russia and Austria, and Napoleon decided to take out Austria by marching 200,000 soldiers across Europe at speed. Napoleon, like Nelson, led from the front, and quickly surrounded the army led by Field Marshal Mack. Mack, it seems, expected the Russians to arrive at any moment; Nicholas Best describes it thus:

The negotiations had been completed on 17 October. Field Marshal Mack had secured an eight day armistice, to give his Russian allies time to come to his aid. Napoleon had consented, knowing the Russians were too far away to be any help (this was not the moment to remind Mac of the 12 day difference between the old and new calendars, something the Austrians had overlooked in their planning). Mack had agreed to surrender on 25th October if no Russians appeared. In the event, Austrian morale was so low that he was forced to raise the white flag on 19 October, six days early.

Russia still used the Julian calendar, which the rest of Europe and America had abandoned in favour of the Gregorian calendar. For a time in the 19th century, Russia used the Julian calendar for domestic purposes, whilst its outward-facing departments, such as Foreign Affairs, used the Gregorian calendar. It all makes the use of Microsoft Outlook seem a relatively trivial matter. History might have been different if Mack had had Outlook, and the skill to use it.

The new tows away the old – the end of the Teméraire

The Teméraire became known as the Fighting Teméraire for her role at Trafalgar. JMW Turner painted her at Trafalgar and did so again when she was towed from Sheerness to Rotherhithe to be broken up on 6 September 1838.

I drop in to see this painting at the National Gallery whenever I have time, not just for its beauty and artistic merit, but for its symbolism. The ghostly white of the once-beautiful, once fearsome and modern Teméraire is contrasted with the black tug which pulls her to her fate, the ugly utilitarianism of the modern triumphing over the old way of doing things. The sun sets on the end of an era – or so convention has it. The tow was up-river, and if the sun was behind the vessels, then it must in fact have been dawn, making the painting more a celebration of the future than a regret for the past.

This kind of analysis perhaps freights the painting with an historical accuracy which Turner did not intend – there was no such sunset on that day, and the Teméraire had been stripped of her masts and much else before the journey. Nevertheless, the image of the new usurping the old provides an apt parallel for the ousting of old practices by new technology. The old ship on her way to the breakers stands for the law firms whose way of doing business (and I mean more here than the mere use of technology) belongs in the past; the steam tug stands for the new models for providing legal services, unattractive perhaps in some ways, but as inevitable as the replacement of sail by steam.

The WikiPedia page on the Teméraire has the 1838 painting, and there is a link to Turner’s earlier painting of the Teméraire at Trafalgar which gives a good idea of the chaos of battle. I like in particular the large French Tricolour, laid out on the Teméraire’s deck. The National Gallery section about the painting is here.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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