My thanks to Matthew Davis at Hogan Lovells for drawing my attention to a straightforward guide to eDiscovery which has been published by the New York State Bar Association. It inevitably has a US focus, but it is full of practical suggestions which transcend jurisdictional rules.

I took to it before I had even finished the introduction, with the passage beginning “lawyers should… never assume, inter-alia” that the clients’ IT people will understand either their ESI obligations or what the lawyers say about eDiscovery, or that judge will appreciate the difficulties. More important, perhaps, is the preamble to that section with its reminder that “there is no exemption from legal duties based on the electronic source of the relevant information”.

This ties in neatly with Lord Justice Jackson’s recent observation that “relatively few solicitors and even fewer barristers really understand how to undertake eDisclosure in an effective way”.

UK lawyers should not ignore the passages on US preservation and legal hold even though our respective rules are so very different. We may not have to jump the extravagant hurdles (as we see them) which the Federal Rules of Civil Procedure impose on parties to litigation, but many of the practical steps recommended in the Guide are equally relevant in England and Wales. The guide advises, for example, that when a decision is made “the supporting rationale for the decision should be documented in writing in a manner that preserves applicable legal privileges”. That applies to UK decisions about the scope of a reasonable search as much as it does to US decisions about implementing a legal hold.

The UK eDisclosure Practice Direction 31B includes, in paragraph 7, a reminder to solicitors to notify their clients of the need to preserve potentially disclosable documents. The suggestion in Guideline No 3 of the NYSBA Guide apply anywhere, not just in the more rigourous US context. The principles of cooperation are broadly the same whether for a US “meet and confer” or for the discussions required by the eDisclosure Practice Direction.

Perhaps most valuable is the glossary starting on page 30 and alphabetically arranged. Most of the terms defined in simple terms there have the same meaning in the UK.

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