The rules relating to case management and electronic disclosure have recently changed in my home jurisdiction, England and Wales. There are pending changes to the Federal Rules of Civil Procedure which similarly affect the role of judges and the approach to be taken by both courts and lawyers to the management of electronic discovery.
A handful of judges on both sides of the Atlantic are interested in and knowledgeable about the parallels between these jurisdictions. One of them is US Magistrate Judge James Francis of the Southern District of New York, and it was my pleasure to interview him recently on behalf of Legal IQ.
The interview itself is posted here and is accessible without registration. As its description says, its focus is on proportionality and on how the costs of eDiscovery/eDisclosure can be contained by not merely by formal rules, but by changing attitudes and by the development of better technology to contain the problems..
Judge Francis identifies four primary areas of potential change, three of which really involve re-emphasis of existing rules:
- Cooperation is not merely something to be imposed by the court but is a responsibility of all parties.
- The rules already provide for proportionality, but the proposed amendment “moves it to the forefront of the parties’ consciousness”.
- The context in which costs-shifting already appears is that the court “may specify the terms on which disclosure may be taken, including the allocation of expenses” – a power now made explicit.
- The proposed Rule 37(e) will standardise the court’s approach to sanctions which presently vary between circuits; the new rule “will require a showing of wilfulness or bad faith for such sanctions or….if a party was irreparably deprived of any meangful opportunity to present or defend against claims”.
Judge Francis talks about the perceived conflict between a lawyer’s duty to court and to client, about the differing case law on the shifting of costs other than lawyers fees, about predictive coding, and about control of budgets for cases in the way now required in England and Wales – not something which US judges are likely to be keen to take on. He ends on an optimistic note, reckoning that we are “moving to a better place” in respect of eDiscovery, both thanks to changing attitudes in the courts and amongst lawyers and to technological development – predictive coding and similar developments will, he says, give us a better ability to get our arms round the problem.
The interview lasts for only 24 minutes. I commend it as an easy way to gain an understanding of the ways that attitudes towards eDiscovery, as well as the formal rules, are changing, and for the better.
The Legal IQ site has a growing collection of resources, including an interview with Mr Justice Frank Clarke of the Supreme Court of Ireland on (amongst other things) comparative developments in various jurisdictions and a talk by Rob Kenny of ZyLAB called Be prepared: eDiscovery and Information Management – what you need to know, whose title is self-explanatory.