I am all for judicial activism, and certainly for judicial endorsement of the informed (and preferably consensual) use by litigation parties of a range of technology tools which have been developed to manage the time and costs of litigation discovery. The new UK eDisclosure rules, due to take effect in April 2013, give considerable power to judges (strictly, they spell out powers which judges already have) to direct not only the scope of disclosure but also the manner of dealing with it.

I am less taken with the idea that a judge might, of his own motion, announce to surprised parties that they must “talk about a single discovery provider… One of these wonderful discovery superpowers [or] if you cannot agree… submit names to me and I will pick one for you”

It was a case, said Vice Chancellor J. Travis Laster in Delaware Chancery Court, “in which the parties would benefit from using predictive coding”. If they don’t want to do that, he adds, he would like them “to show cause why this is not a case where predictive coding is the way to go”.

Do not misunderstand me – when I say I am “less taken” with this approach, I do not mean that it is necessarily wrong, if the case and the parties are the right ones. The judge does, after all, expressly give the parties the opportunity to show that this is not “the way to go” and it will be interesting to see in due course what they have to say.

I generally take the line that, who ever is responsible for giving discovery / disclosure, the burden passes to the party who argues for the more expensive course. Now that the subject has been forced on them, and given the savings which predictive coding can bring, the parties, separately and together, will have to show that some other approach is cheaper or better or both.

What are my reservations? Should we not applaud the boldness of a judge who forces the concentration of minds in this way? Some of the arguments against this are set out in Ralph Losey’s article NEWS FLASH: Surprise Ruling by Delaware Judge Orders Both Sides To Use Predictive Coding. They include technical but important points like Sedona Principle 6 which stresses that the responding parties “are best situated to evaluate the procedures, methodologies and techniques appropriate for their own electronically stored information”. Craig Ball and Dominic Jaar have contributed their views to Ralph Losey’s piece.

My own reservations are based more on the fear that this high wire act will go terribly wrong in some unspecified way. I am all for pushing out the boundaries of judicial activism but am constitutionally inclined (in anything I do) to slow, steady steps rather than big leaps.

Let’s see what happens. Meanwhile, it is the inescapable duty of lawyers and judges to undertake the comparative exercise which has now been forced on the parties to this case – to consider more than one way of skinning the rabbit and to make arguments based not just on technical sophistication (on the one hand) or on nervousness about defensibility (on the other) but on hard-edged assessments of what is right for the case. What will lead most effectively to the proportionate exercise tending towards the “just, speedy and inexpensive” course in the US and the overriding objective in the UK? Perhaps extreme judicial activism is the “way to go”.

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