Taking time to think about Proportionality and Preservation in eDiscovery

The demos, the cases and the formal meetings are an important part of gathering information, but it is good, occasionally, to lift one’s head from the hard-edged material which flows around you and just kick ideas around without an agenda. I did just that recently with Kate Paslin of AccessData, by coincidence just as she published an article on one of my pet subjects – the similarities and differences between US and UK eDiscovery / eDisclosure rules.

For users and potential users of eDiscovery software, conferences like ILTA, coming up in Washington next week, are an opportunity to see applications and compare them under one roof, to talk to other users and potential users, as well as to hear the sessions.  It is only at events like this that you can walk from one demo to another with comparative information fresh in your head and to hear on the spot from your peers and industry leaders.

My interest at ILTA is rather different. I am not a user nor, for what I hope are obvious reasons, do I help firms and companies with system selection. What interests me is the cross-over between the eDiscovery and evidence requirements of courts and regulators, the business practices of lawyers, the use of technology, the ways of keeping costs down. My business is the flow of information about all these things between courts, lawyers, clients and providers. I am, of course, interested in the technology developments, and keep up to date with the evolution of eDiscovery software – but preferably not while several thousand interesting people to talk to are milling around outside.

Keeping pace requires (or so we assume) 24/7 attention, reading everything which Twitter throws at us, answering e-mails, and jumping from subject to subject without pause. When do we leave ourselves time to think? Whilst I am happy to attend meetings with agendas, defined inputs and hoped-for outputs, there is at least as much value to be obtained in both directions by just kicking subjects around as they come up. One way I do this is to invite people from the industry to come to Oxford, to walk around my favourite places and to have lunch, as a loose context for discussion.

So it was that I was visited last week by Kate Paslin, Assistant General Counsel at AccessData based in London, for just such a free-form meeting. We have been talking about this for months, and it was a coincidence that we met up just after Kate had written an article for the AccessData blog, eDiscovery Insight, about pending rule changes in both the UK and the US. Its title is Show Me the Money – Proposed Rule Changes Take on the Spiraling Costs of Discovery. It is unsurprising that the comparative developments in the UK and the US rules should have formed the bulk of our conversation.

Kate’s article rightly identifies the two words beginning with “P” which characterise the civil rules in the two jurisdictions –Proportionality in England and Wales and Preservation in the US.

The link which Kate makes between the deliberate looseness of the UK rules and Judge Scheindlin’s influential cost-shifting analysis is important. US lawyers like bright lines, seeking absolute yardsticks to measure how they are doing. The absence of such absolutes – the date for preservation, the precise scope of search, the accuracy of algorithms – worries them and, understandably, drives them towards targets which allow comfortable margins of safety out of an abundance of caution. The British are content with looser definitions.

It is important to realise two things: one is that, whatever the UK rules and cases may say about proportionality, both now and after April 2013, the ideal – of doing just as much as is necessary and no more – is a target which is often missed, with over-disclosure and under-disclosure equally common; the other is that the US rules, properly understood and applied, have no less room for proportionality than the UK rules, as Kate Paslin observes. This message appears clearly from Judge Peck’s opinion in Da Silva Moore, but that has been drowned out by the plaintiff’s “scorched earth” attack on other fronts.

Whilst the de facto position is that proportionality and adequate preservation seem in the US to have become mutually incompatible objectives, the reality is that the cost which this incurs is both wasted and unsupportable. We have to keep shouting Proportionality at every turn.

There are two postscripts to this article. One is that the newly redesigned Summation product line will be on display at ILTA.  The other is that AccessData is among the sponsors of the Thomson Reuters eDisclosure Forum to be held in London on 15 November. I am one of the co-chairs, and Kate Paslin will be amongst the speakers. It would be good to see a lot of people there.

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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 AccessData, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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