I recently wrote an article about the Court of Appeal’s decision in Denton which I called Letting the punishment fits the crime as Mitchell gives way to Denton. As the title implies, I suggested that Denton took us some of the way back to Lord Justice Jackson’s intentions and that the courts were now better able to exert discipline in a way which had regard to Jackson’s original intentions. I cited Gilbert & Sullivan’s Mikado as a model for the idea that the punishment should fit the crime.
A US judge has taken this one step further. Faced by a party whose conduct of eDiscovery involved taking every point and other activities which lost sight of the “just, speedy and inexpensive” requirement in Rule 1 of the Federal Rules of Civil Procedure, the judge focused on the value of educating the delinquent lawyers. He required them to make a video explaining the proper way to manage eDiscovery. The story is well told in this article from Above the Law which annexes the judge’s order and sets out the more quotable passages in the ruling.
One is a generalised complaint about the conduct of eDiscovery which is worth repeating. It reads:
Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught…. Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.”
Barrister Gordon Exall, whose Civil Litigation Brief is the best source of prompt and lucid explanation of procedural matters, similarly sets out the passage quoted above in his article Proportionate penalty for breach of disclosure obligations: the American approach – make a video and asks “could it happen here?”
His answer is that CPR 3.1(3) (you can find CPR 3 here) gives the court power to make an order subject to conditions, and he concludes with
“a training video is less draconian than striking out… Expect a boom in film production soon”.
I would add a reference to CPR 3.1(2)(m) which says that the court may:
take any other step or make any other order for the purpose of managing the case and furthering the overriding objective
Strictly, I think, the rule-makers who drafted the overriding objective in CPR 1 intended the reference to “furthering the overriding objective” to mean furthering it in the case then before the court. The original points a) to e) in the overriding objective are all clearly case-specific. The new one, CPR 1.1(2)(f), however, has more general application on its face. It reads:
enforcing compliance with rules, practice directions, and orders
You could stretch that, with a little imagination, to embrace anything which helps lawyers understand what the overriding objective is, and not just for the case before the court. Why not tell them to make a video?
I have a double interest here. Wearing my eDiscovery / eDisclosure hat, I am interested in how judge-led procedure can improve both the conduct of cases and the quality of lawyering. Wearing my business hat, I make videos with the help of my son William. You don’t need a court order to decide that video explanation is the best way of educating your lawyers to ensure that they don’t embarrass you in court and in the law reports.
And here’s the first comment, from Philip Favro of Recommind:
The plea before Denton was for a wider range of ways in which the courts could mark its disapproval of the conduct of those who appear before it. We need ways which do not just strike out a party for its lawyers’ default or award costs which will just get lost in the overall settlement. Many of the so-called “Mitchell” cases involved conduct which would always have been punishable in some way, usually for ignorance of the rules. Let’s see something which actually goes to the education of those who appear to need.