The ups and downs of US ediscovery sanctions

The sanctions handed down by US courts for ediscovery failures bewilder the rest of us somewhat. To my eye, if one wanted to design a system which was absolutely certain to encourage satellite litigation, tactical play and (as a defensive reaction) excessive discovery as a back-covering exercise, you would come up with something like the present sanctions regime. I wrote about this in my article International discovery, sanctions, ethics and US-UK comparisons at Georgetown in the context of Judge Shira Scheindlin’s Pension Committee Opinion, saying:

Providers of software and services use the threat of sanctions to encourage that pen across the bottom of the order form; if none of them has yet produced an advertising picture with an axe breaking through the door to the cry of “Here’s Shira”, it can only be a matter of time. The English just gape at them; you mean you get fined massive sums of money because you didn’t send everyone in the company a legal hold letter? Because you overlooked a box of old tapes?
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Americans have rather more respect for senior office holders – judges, public servants and politicians — than we do, or respect at least for their offices, and it has been mildly amusing to an outsider to watch the legal establishment in its various forms implying, without actually saying so, that Judge Scheindlin might, you know, perhaps, have gone a little over the top in Pension Committee. An outsider can be less restrained and say that, whatever view you take of the decision, Pension Committee has elevated the fear of sanctions to the point where they have driven out proportionality.

They seem to like it. The problem which it gives us in the UK is that the inevitable obligations to disclose electronic documents become confused with the apparent message from the US that it is both dangerous and expensive to do so, which is why I spend a lot of my time drawing distinctions between the two systems. The UK is no more tolerant than the US of truly culpable omissions and failures but we have, so far at least, managed to avoid giving litigants the impression that every false move risks enormous financial penalties.

Twitter, bribery and 37 corporate counsel in a big virtual bar

All your highly-polished marketing materials are useless if you do not get them in front of your intended audience and engage with them about it. An article intended merely to point you to a source of messages about the Bribery Act became side tracked – in a good way – into a discussion about the media used to promote it. Dust off that Twitter account which your marketing people opened one Friday afternoon and have been too nervous to use.

You have a specialist subject which is of interest and importance to a wide range of people and which ought to be known to and understood by many more. It is a multi-faceted subject which can be approached from many different directions and is of interest internationally. People, both those already knowledgeable about the subject and those coming new to it, seem to appreciate what you write. You are competent in modern means of disseminating information and views, have plenty of energy and do not mind working seven days a week.

No, this is not about me but about Barry Vitou of Pinsent Masons London who, with Richard Kovalesky QC, uses thebriberyact.com, to bring news and views on the UK Bribery Act which comes into force shortly. Actually, is it not really about Barry, who in this context merely serves as a hook for some thoughts on using modern media forms to promote ideas and demonstrate expertise. His approach is the same as mine, but I have been looking for an example which will not be confused with my promotion of me – I don’t mind doing that, of course, but it muddies the example if it has that parallel motive.

I have referred to thebriberyact.com already (see Some resources on the UK Bribery Act 2010). The crossover between e-disclosure / e-discovery and the Bribery Act is obvious (the clue, if you need one, lies in the Bribery Act defence of “adequate procedures”), and Barry and I are jointly presenting a breakfast session with Iron Mountain on 8 March.

I come back to the subject now, partly because you might otherwise miss the stream of useful articles appearing on thebriberyact.com or linked from its Twitter account, and partly because I met Barry last week at the suggestion of Malcolm Durant of Iron Mountain. We met at Barry’s club, the flavour of which can be gathered from the minimalist rules which seem to come down to “be polite”; the dress code reads “nudity is discouraged” and it positively welcomes both laptops and dogs, all of which make it my kind of place (I once belonged – briefly – to a London club which was so impolite as to send my wife back upstairs – the backstairs, not the one reserved for gentlemen which she had descended – to put on her ball dress for breakfast because women in trousers were banned, as was any evidence of business; I am sure that dogs were no more welcome than women, though you would probably have been allowed in on a horse).