Clearwell White Paper: the new Practice Direction and e-Disclosure

Clearwell Systems has published on its website a White Paper which I co-wrote with them with the title The New Practice Direction and e-Disclosure: Best practices for Complying Proportionately (registration required). Its purpose is to set out recent developments in UK electronic disclosure and to show how Clearwell addresses the requirements which arise as a result.

I can give you the flavour of it by quoting part of its summary:

If you take together the outcome of the cases mentioned above, the requirements of the Practice Direction, and the model for case management provided by the Goodale decision, you see a requirement (and it is a requirement of competence and proportionality as well as a formal requirement of the rules) that parties to litigation assemble and exchange sufficient information before the case management conference to enable themselves, their opponents and the court to make the “proportionate and cost-effective” decisions needed to control electronic disclosure. A part of achieving this goal are the four main considerations laid out in the Practice Direction and summarised above.

Before you can make decisions about narrowing the scope of disclosure, you must know what you have got, be able to evaluate which of it is worth picking out for full review, and be equipped to debate value against cost with opponents. The next section of this paper considers how this might be done as a matter of best practice using Clearwell Systems’ software.

Premonitions of what was to come

I have no idea what is happening in this photograph:

That is not strictly true – I know that it was taken at IQPC in Munich last week just as I was about to moderate a panel on data protection with Senior Master Whitaker and Denise Backhouse of Morgan Lewis. I know too that everything was prepared – slides in order, confident of my subject, panel present and correct, audience in its seats, right country, trousers on, all the standard things to run through as a panel is about to begin. I had slept well, drunk little and felt fine. So why am I clutching my head?

Perhaps I had subliminal premonitions of things which awaited me – of the next day’s take-off in blinding snow, of the urgent demands by conference organisers for next year’s session topics which would hit me before I had written up this year’s, of the e-mail which observed in a non-specific way how interesting it is that my web site looks different in every browser when I thought I had fixed all that, or the letter from my accountant demanding last year’s figures which I would find on my return.

I was probably in fact just pushing my glasses up as we were about to begin. The session seemed to go well, and the conference as a whole was useful and interesting. A report follows shortly.

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International discovery, sanctions, ethics and US-UK comparisons at Georgetown

I was, I think, the only UK speaker (or, indeed, delegate) at the Georgetown Advanced e-Discovery Institute. If the primary reason for going was to talk about US-EU differences, there was progress made too on the continuing US-UK dialogue about our respective disclosure rules and practice. There is two-way value in seeing how others see us.

A great deal of ground was covered, much of which illuminated the divide between US and UK practice and procedure. I make no apology for the fact that the result is a rather longer article than my usual ones.

Introduction

The Georgetown Advanced e-Discovery Institute is a polite, learned event, some of whose sessions, one feels, may actually change things, not merely report or comment on them. There is certainly a mood for change, in the sense that no-one involved in US eDiscovery believes that the present approach is sustainable. An outsider sees what appear to be obvious places to start which inevitably centre round the points of differences with one’s own jurisdiction and, indeed, the UK rules came in for much positive comment, as I report below. We in the UK, in turn, need to raise the level at which we discuss the issues, and get more people, particularly judges, to engage in that discussion in the manner so impressively displayed at Georgetown. We might then see a convergence between our rules and the way they work in practice.

Any attempt to translate these thoughts into positive recommendations founders on deep cultural differences plus the knowledge that whilst the UK rules may be fit for their purpose, the practice has a long way to go. Do US lawyers and jurists bang on so much about ethics and keep each other in line with sanctions because they are more ethical than we are or less so? Do parties collect so much data because a) they really think that proportionate justice is to be found that way b) because the fear of being sanctioned has driven all reason out of litigation or c) because the lawyers and technology providers make a lot of money that way? Or is it just that the wheel is going round so fast – technology catching up with volumes and driving expectations – that no-one can stop it now?

And is it presumptuous of us from the UK to accept praise for our rules and for the proportionate spirit behind our rules, when so few UK judges take e-disclosure seriously, when parties in big UK cases can still assert that the disclosure of electronic documents is ipso facto disproportionate, and when we have just had to fight a long hard battle to persuade our Civil Procedure Rule Committee even to accept that the subject is worth raising?

Whilst the English say “electronic discovery is something Americans do, and look what a mess they make of it”, Americans say “England is two years behind the US”. Well, I for one will not disparage the US approach any more severely than they do for themselves, and if a two-year lag saves us from the worst excesses of US discovery, then can we have longer please? The reality is that we can both learn from each other.  The dream combination, perhaps, would be the rules of England & Wales managed by the array of US judges who were present at Georgetown. My view is obviously a partial one.

I will try and pick out the subjects which have most relevance across the jurisdictions, either because there are parallels, or because their absence is itself a matter of note.