Who explains eDisclosure sources to the lawyers and the court?

An article by US lawyer and eDiscovery expert Jon Resnick of Applied Discovery has application in UK proceedings as well as in the US. Who on your side actually understands where the client’s data is and what is involved in collecting it?

I got an e-mail last night from Geoffrey Lambert in Melbourne whose opening line read simply “Stakhanovite!”. That, as many of you will know, is shorthand for “You have produced a lot today” and implicitly compared my published output (in fact the accumulation of several days’ dictation) with the work of Alexey Stakhanov who, on 19 September 1935, was reported as having mined 227 tonnes of coal in a single shift at the Ukraine city the which is now named after him. His accolades for this feat included the Order of Lenin and having his photograph on the cover of Time Magazine. Some said that the output may not have been entirely down to Stakhanov alone, but the feat was taken up by the USSR marketing machine as evidence of its citizens’ commitment to productivity.

I knew of Stakhanov, but looked him up anyway and then turned to the next item on my to-do list, a commentary on an article by Jon Resnick, Worldwide Vice President Field Operations and Marketing for Applied Discovery. Jon too is a man of prodigious output, with regular articles both on Applied Discovery’s blog and on the company’s Weekly Snapshot which, as I said in a recent article, is one of the more useful and comprehensive sources of regular eDiscovery information. An article by him also appeared on the Forbes web site recently. I have no idea if, as was said of Stakhanov, Jon has a team of willing helpers to do the research and proof-reading which is the writer’s equivalent of opening the seams and carrying away the coal – if so, perhaps he could lend me one, since the volume of material to write about at the moment far exceeds the time available to do it, and I don’t have a large marketing operation to run in addition, as Jon does. All in all, Jon Resnick (in the top photograph below) deserves the comparison with Alexey Stakhanov (the lower photograph) more than I do.

As with Stakhanov, the marketing message is more to do with what Wikipedia, in its article on Stakhanov, calls “increased productivity by means of a better organisation of the work, including specialisation and task sequencing” which is just as important whether you are mining coal, writing thousands of words per week like me or managing large eDiscovery exercises as Applied Discovery does.

The article of Jon’s which I had filed to come back to was headed Who is your eDiscovery MVP? Those outside the US may need, as I did, to look up MVP. It stands for several things, but the most likely in the context of the article is Most Valued Player or Most Valuable Professional. The context is the potential requirement under Federal Rules of Civil Procedure Rule 30(b)(6) that a company in litigation makes available for examination the person most knowledgeable about the company’s records management, IT policies and discovery procedures.

As with so many things, this is a more formalised requirement under FRCP than it is under the UK equivalent, the Civil Procedure Rules. Our Rule Committee has recently baulked at imposing an obligation that the solicitor or other person responsible for carrying out the disclosure process be present at the case management conference, and there is no express requirement that anyone from the company be present. On the other hand, there is increasing intolerance by the courts of lawyers who get as far as the CMC without knowing enough about their clients’ systems to be able to engage on the subject when the scope and likely costs of eDisclosure are being discussed.

As Lord Justice Jackson said in a recent speech, “fundamental decisions are likely to be made about disclosure [at the case management conference]. If the person who is responsible for disclosure and understands what material exists does not attend, inappropriate costs orders may be made with drastic costs consequences for the client”.

The Electronic Documents Questionnaire which forms part of the eDiscovery Practice Direction 31B CPR is a structured way of collecting information about a party’s electronic data sources. Most solicitors expect their clients to sign the statement of truth which appears at its foot, and it must follow from this that both the person signing and his lawyer should understand what is being confirmed by the signature. In practice, there is a potential gap between the knowledge and understanding of the various players, even within the client company. The executive signing a statement of truth is very unlikely to know about the company’s information management systems from his own knowledge, and few IT directors can be expected to understand the legal context which defines the scope of disclosure.

Jon Resnick raises the spectre of a contentious Rule 30(b)(6) deposition in which “opposing counsel may try to find ways to discredit your organisation’s eDiscovery practices and lay the groundwork for further investigations of those practices”. Whilst it is right to say that this is relatively rare in UK proceedings (mainly, I think, because UK judges have a duty of active management where most US judges see their duty more as arbitrator of whatever disputes the parties bring before them), potential exists for expensive and time-consuming battles in which ignorance of your own client’s systems is a decided handicap.

Many lawyers will challenge that, I know. Their job, they will say, is dealing with issues, facts and law, and the mechanics of finding and collecting documents is something to leave to the clients, who will have been sent the firm’s standard letter of advice when instructions were first received.

Such a letter is, of course, vital (you do send one, don’t you?) but the solicitor’s duty in respect of disclosure does not end with popping a copy in the post. Once again, a US source is helpful; in a recent article called UK relevance in a practitioner guide to eDiscovery from the New York State Bar Association  I wrote this:

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”.

US magistrate Judge Andrew Peck, one of those who really does understand both the eDiscovery rules and the difficulties facing lawyers and their clients, talks of the value of involving an IT expert, whether someone from the clients or an outside consultant, in the discussions about eDiscovery – “bring a geek to court”, he says, so that meaningful discussions can take place which may pre-empt expensive applications and help all parties and the court to arrive at a proportionate conclusion. Jon Resnick’s article draws attention to the same thing. You do not need the fear of US-style spoliation sanctions to see the sense of this passage:

a competent witness may be able to explain why the expense or burden associated with collecting a certain type of ESI renders that data not reasonably accessible and thus beyond the proper scope of discovery. In short, the deponent may be able to set opposing counsel’s expectations about the feasibility of e-discovery in your matter.

That is part of the purpose of the Electronic Documents Questionnaire included in Practice Direction 31B. The Questionnaire is compulsory in very few cases. It is valuable in many more. The precise context of rules, and some of the language, may be different in the US system of which Jon Resnick writes, but the basic idea that you involve someone – the company’s “eDiscovery MVP” if it has one, or an external expert if not – to do the explaining, has the potential to save costs, save face and, perhaps, to save the case.

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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, Lord Justice Jackson, Part 31 CPR. Bookmark the permalink.

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