More on risk appetite as US and UK eDiscovery are compared

Recommind’s Howard Sklar was kind enough to comment on my blog post Assessing risk rather than trying to eliminate it in his post Risk Appetite: no thanks, I’m full on the InfoRiskAwareness site..

My article drew parallels between attitudes to general public risk and attitudes to eDiscovery in the UK and in the US. If Howard thought that I “woke up on the wrong side of the bed” on the morning that I wrote that article, what will he say about my even harsher and more specific article of Sunday about Strathclyde’s Fire and rescue service, whose officers allowed a woman to die because of what the Sheriff considered “fundamentalist adherence” to health and safety policies? The Sheriff’s Determination includes the same phrase as appeared in my article’s title about attempts to “eliminate risk”, and with much the same contempt.

I point you to Howard’s article mainly because of one sentence in it. Howard says:

It is here that Chris is absolutely right when he says that the UK rules are too permissive.

That statement really needs the addition of “when viewed through US eyes”, because I did not actually say that I believe the UK rules to be too permissive. What Howard says thereafter is the corollary to my view of the US system – he says that “the idea that there is no concept of legal hold [in the UK] flabbergasts US lawyers”. Flabber away, I say. It is not that we forgive the destruction of documents. My observation on the US system was that it has become “obsessed to the point of catatonia with eDiscovery risk”, with massive over-collection caused by a fear of sanctions which is not warranted by any sensible interpretation of the many cases on the subject.

I don’t mind, really, at least down to the point when US courts try and impose the same standards on the rest of us in cross-border eDiscovery – we just want to get on and have the matter resolved without expensive diversions which often seem to have no bearing on the issues being litigated. Deliberate conduct aimed at thwarting justice is punished here as well, as Rybak v Langbar International shows.

So what did I say which has been interpreted as a concession that “the UK rules are too permissive”? I made two references to UK disclosure. The first was:

The US in turn thinks that the UK approach to eDiscovery – to spoliation, the preservation and legal hold, and to the completeness of discovery – aims at a laughably low standard compared with the stringent requirements of US discovery.

That is a report, not a view, and certainly not my view. There is much to complain of in the way UK courts and lawyers manage eDiscovery, and the rules themselves have scope for improvement, but you won’t catch me knocking the standard set by the UK rules and cases. I don’t claim that the process is perfect, but I will stick with it in the face of any threat that we might go the American way.

My second reference to UK eDisclosure was this::

It is probable that UK eDisclosure questions will be scrutinised sooner than has been the case hitherto, but the context will, I hope, be judge-led initiatives to weigh cost against scope rather than mere alleged failure to comply with formal requirements.

So yes, I am urging closer attention to the scope of eDisclosure in the UK, but am aiming for narrower and more proportionate disclosure as a result, not an aspiration towards US legal hold standards. If UK judges are too “permissive”, it is because they too often permit excessive disclosure, not because they condone inadequacy.

If one has to choose between the risk that documents may sometimes be missing for whatever reason and the risk of US-style preservation and legal hold battles, I will risk the occasional oversight. The law as set out in Rybak is all the comfort I need that misconduct will not go unpunished.

What Howard and I are illustrating here is something I say when speaking to audiences in mainland Europe – a line in one of my slides reads “Each finds the other’s position literally incomprehensible”. Philip Favro of Symantec has also made observations on things I have said about UK-US differences. I will come to them shortly.

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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
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Recommind. Bookmark the permalink.

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