The SCL website is again collecting predictions for the coming year. There is always a good crop relating to eDisclosure / eDiscovery – mine usually arrive just after the print edition has gone to press, and I suspect that will happen again this year.
The first round of contributions relating to eDiscovery / eDisclosure (you will see in the moment why I am emphasising these two labels), from Mike Taylor of i-Lit, Andrew Haslam of Allvision, and Charles Holloway of Millnet. You can read them for yourself, so I will not recite them here. The one which catches my eye, however, is number 6 on Mike Taylor’s list. It reads:
Despite the UK not having a ‘discovery’ process any more many well-known commentators will continue to insist on referring to UK e-disclosure as e-discovery, fuelling the perception that what we do in the UK is identical to that which is done in the US. It is not.
Hmm. The only two commentators who refer to “eDiscovery” as a matter of choice rather than ignorance are me and Jonathan Maas of Ernst & Young (the link, you will note, is to E&Y’s eDisclosure page), and we are both careful to distinguish between references to the Civil Procedure Rules and discussion about the process. I refer to this quite often, most recently in the opening paragraphs of this article which I will not repeat here.
Let’s dismember Mike’s short sentence bit by bit, starting with “many well-known commentators”, and perhaps substituting “commentators of whom you may have heard”, since “well-known” rather over-states it if applied to any of us in this small patch. I wish there were “many” of us – we need much more discussion and, most of all, more anecdotal evidence of what actually happens in correspondence and in case management conferences around the country. One of the many positive things about US eDiscovery is the breadth and depth of the informed discussion about it which goes on.
Next we turn to “insist on referring to UK eDisclosure as eDiscovery”. If I am talking or writing of UK eDisclosure – the formal stage required by the Civil Procedure Rules – then that is what I call it. If I am talking of the process of identification, collection, analysis, review and the rest, in which we use US and Australian software, and which may refer to regulatory investigations and internal investigations, many of which are trans-jurisdictional, then I am happy to use the word which is generally accepted around the world. The fundamental flaw in the word “disclosure” (apart from being an entirely unnecessary piece of attention-seeking by the 1999 drafters) is that the actual “disclosure” – the service of lists of documents and subsequent exchange of data and documents – is the least onerous part of the task. The bulk of the work, skill, cost and scope for error lies in the search when you “discover” what you have. As it happens, the word “discovery” as used in the old rules originally applied to the “uncovering” of your evidence to the other side, but we are concerned with communication of concepts here, not etymology.
The passage with which I really take issue (in a friendly way – Mike is a well-informed and articulate UK commentator and we spar like this from time to time) is the suggestion that references to eDiscovery are “fuelling the perception that what we do in the UK is identical to that which is done in the US. It is not.”
Well, what they do in Australia, Canada, Ireland, Scotland, Hong Kong, Singapore and New Zealand is also called Discovery, and none of these jurisdictions have processes which are “identical to that which is done in the US”. I do not use the term “discovery” simply to take a poke at those who misguidedly changed the label in 1999, or because I have a wide audience outside England and Wales, nor is it solely down to the point made above about the aptness of the word. It is also because there is a substantial body of “discovery” rules and literature around the world which have useful things to say to us about the process, and because we in turn want to be understood elsewhere, not least by those who might bring their contentious business to England and Wales.
There are certainly many lawyers in the UK and elsewhere who dismiss the subject because the US practice and procedure is seen as an unhelpful model. Indeed, I first set out to learn about the US process precisely in order to rebut that suggestion – it seemed (and seems) a curious response to the inescapable fact that most documents are electronic. The comparisons are useful, and not all in our favour. Jonathan Maas and I were asked at a dinner this week to explain “the difference between eDisclosure and eDiscovery”. There is no difference of principle, we explained, but the rules vary from jurisdiction to jurisdiction and we alone have adopted another label for it. At a rules level, we have more in common with some of the other non-US systems than the US has with any of us; the word “discovery” is used formally everywhere but here.
I am all for the Little Englander approach to language generally and, indeed, have an article coming up on that subject. I am also reasonably careful to use the right term of art where it is appropriate to do so, and default to “eDisclosure / eDiscovery” where necessary. I am not going to cut myself out of the global discussion by sticking resolutely to UK terminology. Quite apart from anything else, there are no marks for using a term which no one else uses on Twitter and which produces only narrow results in Google searches.
Mike Taylor did not, of course, choose the heading to the SCL’s Predictions page but it is headed “Discovery divinations and much more”. Jonathan Maas and I are not alone. The point is worth airing for as long as people keep asking what the difference is and, as you will gather from what I say above, the last time I heard the question was earlier this week. I don’t blame the questioner – the confusion is inevitable – and it would take a large (and rather pointless) book to explain the points of difference and similarity between US eDiscovery and UK eDisclosure. Nor is Mike Taylor wrong to draw attention to the point; having taken aim at a group of which I am presumably identifiable as a member, he will not be surprised that I fire back.