Opening his turn of the year article A dozen nips and tucks for E-Discovery, US eDiscovery expert Craig Ball notes this of the lawyers who attend his presentations:
Ironically, predictably, the more successful the lawyers in attendance, the less moved they are to seek fresh approaches to discovery.
What are “fresh approaches” varies, of course, with your starting point. Craig Ball’s article is not aimed merely at those already expert who might enhance their skills, but at those who really don’t have much of a clue. In a month where England and Wales has seen a defendant’s case struck out for some fairly basic failures (see my recent article Relief from sanctions denied after non-compliance with disclosure unless order) the target audience is wider than those who just need to catch up with new developments.
The US is a foreign country, and they do things differently there. When I began this lark, the differences were very marked, with UK lawyers mocking the US for what seemed an excess of process over proportionality, and US lawyers sneering at the Brits for their apparently lackadaisical and tolerant approach to discovery failures. The gap has narrowed over the years, with the US rules and courts focusing increasingly on proportionality, and the UK rules expecting more from lawyers than hitherto. Suggestions from one jurisdiction have correspondingly more value in the other.
With that in mind, I commend Craig Ball’s article, with its “pithy and actionable takeaways” to UK lawyers, despite minor differences in the requirements and in the language. His closing point “There are no more free passes for ignorance. Now, learn it, get help or get out.” applies anywhere. If the judge in the Vitrition UK case didn’t put it quite like that to the defendants as he struck out their case, he came pretty close to it – it was a bit late by then to urge them to get help, but the failure to involve experts was one of the points he mentioned.
Many of Craig Ball’s points relate to finding and preserving potentially relevant data, not forgetting newer and prolific forms like chat and video. Recent rumour has it that 10 Downing Street positively encouraged staff members to delete diary entries, chat and emails relevant to the lockdown parties whose existence were then still being denied. The same principles apply there as in the smallest case, subject to the application of common sense and proportionality.
There is plenty to get wrong in litigation. Compliance with the more basic eDiscovery rules seems a daft way to fail. In saying this, I stress the word “basic” – there is complexity enough in the rules, in the tools, and in the processes, without falling over on the more elementary points.