I am giving three talks during my trip to the US next week. The first of them is at Cicayda’s RELEvent – the un-conference at Nashville and has the title The Future of US-style Discovery from a UK perspective.
I did not choose this title – I usually find out what I am doing at conferences by reading the agenda – but it is an appropriate one. I first went to the US, in 2007, because I found myself continually meeting in the UK the argument “Oh, electronic discovery is what Americans do, and look what an expensive mess they make of it”. It seemed right to go and find out before accepting or rejecting the conventional wisdom; what I found was that the view from that side was equally nonsensical – the curious idea that “the US is two years ahead of the UK”. The second reason why it is appropriate to revisit that subject now is that the US is contemplating changes to the Federal Rules of Civil Procedure. Whisper it, but some of those changes, if passed, will bring US eDiscovery more in line with the UK approach.
I use the word “approach” advisedly, because the practice as it has developed in the US, and particularly since the 2006 Amendments to the Federal Rules of Civil Procedure, has not accurately reflected the intentions of the rulemakers. There was enough in those rules about cooperation and about proportionality and it was all blown out of the water by Judge Scheindlin’s opinions in the Zubulake case. I have written enough about this in the past, but my broad theme is that a defendant which deserved all it got in that case caused a precedent (in the wider sense of that word) which led the US into enormous expense and waste of money, as all the cases which followed were treated as if every giving party had something to hide and was hiding it.
I will not expand on that here, but I have been reading around the subject of the new rules as part of my preparation for this panel. You may be interested in some of the articles which I have been reading.
Since eighteenth century England, common law rules have required that once an entity reasonably anticipates litigation, it has a good faith duty to preserve all relevant evidence.
The United States, which inherited the British common law tradition, maintains the same requirement to this day….
That is a good starting point for an analysis of how the jurisdictions have diverged since then, not least on the point that US lawyers like bright lines where UK law, in this area at least, relies more on discretion and the sliding scale which is inevitable once the word “proportionality” is introduced than on any attempt to define precise limits.
The second article from NightOwl’s Albert Barsocchini is headed Is the Proposed Amendment to Narrow Scope of Discovery a Good Idea?
This draws attention to one of the proposed amendments to the Federal Rules, the one which provides that information may be discoverable, even if it would be inadmissible at trial, if it is “reasonably calculated” to lead to the discovery of other documents. In England and Wales, this was called “train of enquiry discovery”, and I use the word “discovery”, because we (rightly) ditched train of enquiry as the default obligation at the same time as we (stupidly) replaced the word “discovery” with “disclosure”; there therefore never was a formal label “train of enquiry disclosure”, although the concept never went away and it is one of the options on the “menu option” in the new Rule 31.5 for those rare cases where the court thinks it appropriate.
The best summary of the proposed amendments to the rules relevant to discovery practice in Federal Courts is on the Norton Rose Fulbright site. It is called Proposed FRCP e-discovery amendments v.2.0, and is written by partner David Kessler amongst others. David is one of the most authoritative lawyers engaged in eDiscovery practice in the US, and is someone I am fortunate to speak with at conferences from time to time. This article is the best I have seen for summarising the proposed changes heading by heading.
It is complemented by an article by Philip Favro called The “other” proposed amendments to the Federal Rules of Civil Procedure which expands the discussion to consider some of the wider implications of the proposed changes. His summary includes this:
By emphasizing cooperative advocacy and by making proportionality standards the touchstone of federal discovery, the amendments suggest that discovery will be conducted with laser-like precision instead of the sledgehammer approach of the current regime.
That sounds more like it.
The proposed new rules in relation to preservation of evidence involve an amendment to Federal 37(e). This has divided opinion, not least judicial opinion, between those who believe that the modification to the rule will reduce unnecessary expense and those who feel that the amendment will encourage behaviour which is sloppy or worse.
It is unsurprising, perhaps, that Judge Scheindlin, the author of the Zubulake opinions of so long ago, should be in the latter camp. Matthew Nelson of Symantec has carefully analysed Judged Scheindlin’s position in an article called Judge Scheindlin Blasts Proposed FRCP Amendments in Unconventional Style.
This is a balanced article, which gives both sides of the story. To me, US eDiscovery stands at a cross-roads or, rather, it stands at the junction between the path to the sunny uplands of proportionate discovery and the road to discovery Hell.
The subject is one of interest and importance, and I look forward to talking about it in Nashville from a UK perspective.