My headline illustrates one of the difficulties of writing about the same subject as it relates to both the Civil Procedure Rules of England and Wales and the Federal Rules of Civil Procedure. Thanks to a pointless rule change in 1999, we can’t even use the same terminology as the rest of the world to refer to what is essentially the same function, and I have to keep writing “discovery / disclosure”.
To that is added the gritted teeth through which I refer to the “UK rules” because I really can’t be taking up half a blog post explaining not only that we use different terminology but that “England and Wales” is a single and discrete jurisdiction, that there are no “UK” or “British” rules, and that Scotland is a separate jurisdiction and Ireland a different country.
There we are – 138 words so far and I haven’t even started on my actual topic.
There are as many differences as similarities between the US and E&W rules. Occasionally, the same subject surfaces at the same time and it is one of those – self-collection of documents – which is my topic for today. “Self-collection”, in this context, means that a litigant, whether an individual or an organisation, gathers discovery documents themselves, with the usual implication that they set the criteria for collection. After all, so the argument runs, they know their own data.
What they don’t usually know are the rules governing disclosure. They are also, inevitably, open to that subtle bias which picks the documents which support their position in the litigation. They may just overlook others.
When I first started writing about US discovery, I was faintly derisive about their concern about the perils of self-collection. I quickly learnt to suppress that derision, not least because I was working with companies whose business involved selling solutions and services for collection. Things changed a bit over the years as clients rebelled against the expense of hiring third parties and wanted software to help them do the job. The software companies obliged, and many organisations increasingly handled their own collections.
Throughout these changes, lawyers remained responsible, to their clients, to their opponents, to the courts and to their professional bodies, to ensure that discovery / disclosure was given properly and in accordance with the rules. One was always happier taking disclosure from a decent law firm because one might reasonably expect an ethical overlay to the duties.
The biggest development was not the increasing duties, important though they were, but the increasing complexity of identifying, extracting and classifying documents and data, and the development of ever more sophisticated tools to do this. With complexity and increased volumes, came cost, and with cost came increasing obligations to be proportionate. All these things pushed in different directions.
This much is a preface to two cases, one in the US and one in the UK (yes, I know) in which the scope of a lawyer’s discovery / disclosure duties came before the court. The US case is the Equal Employment Opportunity Commission v M1 5100 Corporation. David Horrigan of Relativity has written about that here and there is a good article by Kelly Twigger here.
I will confess, with some diffidence, that when I started writing this post, I knew I had seen a recent article on the perils of self-collection in the courts of England and Wales. It took me a while, but eventually I found it. The author was, um, me, and it was written only about 5 weeks ago. The case was Square Global v Leonard and my article is here.
I will leave you to read these articles for yourself without further summary from me.
There is a point here about the slippery nature of memory. If I can remember that a recent article exists and was on point, but can’t remember that I wrote it, then your clients can overlook key documents and sources of data when they come to give discovery. I write on many subjects; I publish and move on, and don’t feel any embarrassment at having flushed this one from mind. But if you, as the lawyer, have to certify that discovery is complete, you are at serious risk, in any jurisdiction, of being criticised (and worse) if discovery / disclosure left in the hands of the client proves to be incomplete.