It is easy for eDiscovery people to treat the management of litigation documents as an end in itself, overlooking or ignoring the fact that discovery is one of many components of litigation. It is also easy (I get eloquent about this from time to time, as you may have noticed) for practitioners in one jurisdiction to ignore what happens in other places where the rules are similar, overlooking the opportunities to learn things which may be of benefit back home.
Philip Favro of Recommind in the US makes neither of these mistakes and, for as long as I have known him (quite a long time now), has encouraged awareness, by his writing and as moderator of panel sessions, about the wider context in which eDiscovery sits and about the lessons which might be learnt from other jurisdictions.
It is equally easy (that is to say, usual) for English barristers to overlook the practical implications of electronic disclosure. They want the evidence, of course, but often have no idea at all about where it might be found and what is involved in collecting and analysing it. In addition, the more recent UK rules about disclosure have passed many of them by – that sort of hum-drum stuff is for solicitors, they think.
Gordon Exall is a personal injury barrister at Zenith Chambers in Leeds and, as of this week, an associate member at Hardwicke Chambers in London. eDisclosure is rarely an important component in PI cases, but Gordon Exall has a second string to his bow, expertise in compliance with the Civil Procedure Rules and in the penalties which can result from failure to comply with them. His Civil Litigation Brief is indispensable reading for anyone practicing in the civil courts of England & Wales.
It is appropriate, therefore, that Phil Favro should have interviewed Gordon Exall in one of the series of very good Q&A posts on Recommind’s Mind Over Matters blog (there is other recent and interesting stuff there, some of which I hope to come back to). The result, Q&A with barrister and UK procedure expert Gordon Exall begins with an area in which both interviewer and interviewee have done very well – using blogs and Twitter to advance understanding in their respective fields; that, indeed, is how I met both of them.
Gordon Exall’s blog got a major boost (though not perhaps one that was more welcome to him than to anybody else) with the unthinking decision of the Court of Appeal in Mitchell, leading to a period of what Gordon Exall calls “Mitchell Madness” as courts and lawyers focused on procedural points which had nothing to do with the issues or with the timely conduct of the litigation.
With that behind us (see Gordon Exall’s own article called Mitchell Principles were not here to stay) Gordon identifies budgets as the biggest procedural challenge facing lawyers and litigants in England and Wales. Asked about disclosure compliance, he inevitably refers (as I often do) to Smailes v McNally  EWHC 1755 (Ch) as “a major wake-up call to anyone involved in the disclosure process”. A claim for £50 million was struck out entirely because of procedural defects in the management of disclosure.
Gordon Exall ends the interview with four simple points to do with knowing the rules and the proportionate use of the relevant evidence.