A podcast recorded with Symantec aimed at explaining UK discovery rules and procedures for a US audience is a helpful summary for UK lawyers and clients as well.
When I first took on the role of explaining UK electronic disclosure, it was primarily for audiences in England and Wales – that is why I adopted the business name name eDisclosure Information Project. One UK reaction, I quickly found, was to sneer at the whole subject on the ground that it was something Americans did, and did very expensively. This reaction is both stupid and true – the fact that US courts, rules and lawyers make one hell of a meal to our eyes of what is already a difficult task is not a reason for ignoring it in one’s own jurisdiction. The documents exist; that is where the evidence lies, and the now-codified principles of common law discovery must adapt to cope with them.
I bumped into a senior litigation partner in a few days ago who rolled his eyes at the mention of electronic disclosure, bemoaning the expense of a recent case in which his clients had had to deal with enormous volumes of documents. It was clear that he blamed the rules, or the courts, or the system, or something else inchoate and undefined which was at fault. Surely, I said, the problem is that your clients had a lot of data; if they have it and if it is potentially disclosable according to the rules then it must be managed. There are remedies for all that, but they require a different approach at the clients (see my stream of recent posts on information governance on that subject) and a different way of exploiting the rules, the technology and the court’s discretion once litigation begins.
The rules of England and Wales are, in fact, very much more restrictive than those of the US in terms of the scope of disclosure, the extent of the search, and the express obligations to be proportionate. The courts have, or are supposed to have, a more active role in managing the case generally and eDisclosure specifically, and there is more room than people think to make use both of technology and of the rules to narrow the scope of what is disclosed.
US lawyers tend to stigmatise this approach as lax. “UK eDisclosure means ‘I will give you what I feel like giving you'” someone once said to me, showing that he had no more idea of the effect of our rules than most UK lawyers have of his.
Why does this matter? There is a middle ground somewhere, and we can learn from each other. Amongst the many changes coming up for UK litigants is a tightening of the consequences of disclosure which is late, inadequate, or otherwise in breach of the rules. We will not, God forbid, go down the US trail which appears to us to punish purely technical defects in a way which adds nothing to justice but a considerable amount to costs, but we will see parties compelled to focus on proper and proportionate disclosure within the rules. We can, however, learn something from the US approach, not least about the use of technology developed to meet their onerous FRCP requirements. The US, in turn, is beginning to question the consequences of its rules and case law, with serious discussions in hand about the rules of preservation and legal hold, and increasing references to words like proportionality and cooperation which were barely heard when I first dipped a toe in US waters six years ago.
Philip Favro, discovery counsel at Symantec, kindly gave me the opportunity to talk about these things in an informal podcast which we recorded recently. It is intended as the first of a series about comparative eDiscovery (that is, the differences and similarities between jurisdictions) and about cross-border eDiscovery. The one is a necessary premise for the other – you cannot wade into another jurisdiction and demand documents without an understanding of the rules which apply in that jurisdiction, and those who are on the receiving end of US demands need to know what pressures are driving the would-be collector.
The result consists largely of my explanations in response to Phil Favro’s queries about both the present rules and those which are coming, including costs management and the “menu option” in Lord Justice Jackson’s new Rule 31.5 CPR. Despite being aimed primarily at a US audience – or perhaps because of that – it serves as a primer which might be helpful to UK lawyers as well.
There are no forms to fill in – just click the arrow and away you go. It is a painless way of absorbing information about electronic disclosure in England and Wales.
As a gentle introduction to the next stage in our series, you may care to read an article which Phil Favro has written on the e-Discovery 2.0 blog called The eDiscovery “Passport”: The First Step to Succeeding in International Legal Disputes. The “passports” in question are a series of short articles which Symantec has produced as guides to the differing rules, and particularly those relating to data protection and privacy, in a range of jurisdictions around the world.