The Tyranny of the Outlier in shaping eDiscovery disputes – a US article with UK messages

An article about US eDiscovery has messages for UK eDisclosure. The Electronic Documents Questionnaire should be used to reduce unnecessary costs both of the disclosure itself and any disputes about it.

I don’t know what US forensic expert Craig Ball did on his holidays (well I do to some extent, because I was with him in Sydney for part of them), but he has come back in cracking form with a stream of really good articles. One of the recent ones is actually called When Preservation Requests are Wielded as Weapons but it will become known (because it will be referred to often) as the Tyranny of the Outlier. The suggestions which Craig makes apply even in the relatively sanctions-free environment of UK courts because, if followed, they will save clients money.

An outlier is an example which “appears to deviate markedly from other members of the sample in which it occurs”. Craig refers to “outlier opinions” which, in any eDiscovery context, are taken as imposing new or wider preservation obligations which parties follow thereafter regardless of the facts of the case in which they were given. Litigants who make wide preservation demands are not necessarily making tactical moves, but fear that they are failing in their duty if they do not demand “everything”; those facing the demands feel compelled to react with over-wide preservation.

Steps are taken in an attempt to be “unassailable” when what is required is merely that they are defensible. Instead of bowing to opponents’ demands, the proper response is cooperation, with parties “communicating relevant, reliable and specific information about systems, sources and forms to enable the other side to make responsible preservation demands… even if they won’t do so”, conveying quickly what is expected and thus “affording an opponent an opportunity to take the issue to the court”.

I have quoted enough, I hope, to send you to read the article for yourself. The passages given above should make it clear that this advice holds good in jurisdictions which do not have the fear of sanctions which drives so much of the cost of US litigation – an outcome which, as Craig Ball makes clear, is something which is statistically less likely than being struck by lightning, even in the US.

The suggestion that you communicate “relevant, reliable and specific information” about sources etc to opponents in a cooperative way, giving them the opportunity to apply to the court in case of disagreement is what underlies the Electronic Documents Questionnaire in the UK eDisclosure Practice Direction 31B. The idea is that you flush out problems at an early stage and have them resolved, if necessary by the court, before substantial expense is incurred trying to anticipate the most extreme of possibilities. It also gives an opportunity for rational discussion about the ratio of cost to value – the components of proportionality as well as of business sense – of any particular source

If you seek a good UK example take a look at what I wrote about Omni Laboratories Inc v Eden Energy Ltd in my article Late eDisclosure application tacked onto pre-trial review at a cost of £47,000; one party waited until the pre-trial review, three months before a ten-day trial, to challenge its opponent’s electronic disclosure, clocking up substantial costs in doing so.

I call it a “good example”. It would have been a better one if we knew more about the reasons for the lateness of the application and knew what costs order was made as a result. It may be an outlier, meaning, in this context, that the extreme situation described in the judgment is not representative of the norm. My feeling is that equivalent things happen on a smaller scale every week in UK litigation as lawyers pole up to case management conferences without any idea about their client’s documents and even less about their obligations under the rules. No client can want to see his money burned up in this (presumably unbudgeted) way so late in the proceedings when in most cases (and I stress that we do not know enough about the background to the Omni Laboratories case), a diligent, informed and cooperative approach to identifying the scope of disclosure/discovery at an early stage should minimise the costs wasted on unnecessary work.

Complaints about the alleged burden of the UK Electronic Documents Questionnaire have tailed off as its early critics have got around to reading it and the Practice Direction which serves as its trigger. Its purpose, the early exchange of document information in a structured way, applies in many cases beyond the relatively few which the Practice Direction envisages. You do not need the fear of court-imposed sanctions or costs penalties to see the sense in knowing the scope of your own disclosure and that of your opponents at an early enough stage for the information to influence decision-making before substantial costs are run up on both sides.

You do not actually need an order to make use of the Questionnaire, come to that, just an appreciation that sharing information about this most expensive component of litigation can save money without prejudicing either tactics or strategy.

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