Trans-Atlantic video panel: The differences in approaches to eDiscovery in the US and in Europe

The American Bar Association’s Section of Science and Technology Law organised a lunchtime panel session in Washington last week. Its topic was the differences in approaches to eDiscovery in the US and in Europe and how those differences might affect eDiscovery in an environment spanning national borders, e.g. the cloud. Whilst it is not unknown for me to cross the Atlantic to take part in a single conference session, I attended this one by video link.

This method of bringing people together was much touted at the beginning of the recession. The time and cost of air travel and hotels, it was said, would be prohibitive, and we would find by the end of the recession that video provided a perfectly adequate substitute. This prediction overlooked two points: one was that the cost of travel fell like everything else as airlines and hotels struggled to fill their seats and beds; the other was that there really is no substitute for human interaction, whether one to one in a bar or one to many from a conference podium. This one worked very well, and I would happily do more of them, but I am only equipped to talk to a US audience because I spend a lot of time each year in the US, soaking up my subject by talking to the people who practice it, or welcoming them to the UK.

There were two US panellists, US Magistrate Judge John Facciola and Judge Herbert Dixon of the Superior Court of DC. Stephen Mason, General Editor of the LexisNexis book Digital Evidence and a well-known speaker and writer on electronic evidence in many jurisdictions, was the other UK speaker. Bennett Borden, Chair of the eDiscovery and Information Governance Section of Williams Mullen was the moderator.

The video facilities were provided by Squire Sanders in London. Squire Sanders lists 36 offices in 17 countries in North America, Europe, Asia, Australia and Latin America on its website, with 13 languages to choose from when reading it. My only connection with Squire Sanders hitherto is that my photograph appears alongside that of a Squire Sanders partner on the Equivio website, and I know Stephen Goldstein, its director of practice support, who is an eloquent and effective advocate of technology at eDiscovery conferences.

An eDisclosure evening at Lord’s with Clearwell

It is quite hard to find suitable and accessible venues for what is, essentially, a talking session. The location, and any side attractions, must be interesting enough to be part of the draw, but you do not want them to dominate the occasion to the exclusion of the message you wish to convey.

The Writing Room at Lord’s Cricket Ground is perfect, and made a great setting for an evening at which Robert Lewis of Barclays, Senior Master Whitaker and I talked to an audience invited by Clearwell about eDisclosure developments from the perspectives of judge and client.

I opened with some context. The eDisclosure Practice Direction and Electronic Documents Questionnaire have been in the Rules for just over a year. A recent speech by Lord Justice Jackson drew attention to a pending new Rule 31.5 whose effect would be (amongst other things) to remove the default of standard disclosure and replace it with a “menu option” which would require the judge to consider what disclosure was actually necessary and proportionate for the case. In the same speech, Lord Justice Jackson had criticised the legal profession saying that “relatively few solicitors and even fewer barristers really understand how to undertake eDisclosure in an effective way.” This had been reported in an article headed Top Beak: ignorant lawyers fumble electronic evidence, which is as good a way to putting it as any other.

We had had two relevant cases. In Omni Laboratories Inc v Eden Energy Ltd a party used the pre-trial review, eight weeks before a ten day trial, to make a major specific disclosure application, incurring £47,000 in its own costs (I have written about it here). In Mortgage Agency Services Number Four Limited v Alomo solicitors, the defendant was punished in indemnity costs for running up unnecessary costs for its opponent and exceeding costs estimates. Although not narrowly an eDisclosure case, the principles of case management and of lawyer conduct were increasingly likely to arise in and eDisclosure context (my article about this case is here).

eDisclosure was increasingly seen as an end-use of information governance. Litigants, and in particular those who litigated often, would find the courts increasingly intolerant of excuses which depended on their own poor information management, particularly if the result was a waste of court time and an increase in the costs incurred by other parties. Symantec’s acquisition of our hosts, Clearwell, was symptomatic of this increasing focus on a continuum from document retention and management through to eDisclosure.