Contract can lie in email threads or multiple emails

I am, on the whole, fortunate in the judgments which I have to read. Most of them involve procedural failures and breaches of what are, frankly, fairly straightforward obligations. You do not have to be a lawyer or a technologist (let alone both) to understand the provisions of Part 31 of the Civil Procedure Rules and its practice directions, nor the US equivalents. I quoted with approval the assertion by Allison Stanton, eDiscovery Counsel at the US Department of Justice  that “[Her] 5-year-old can tell by page 3 of an opinion that it is going to end in sanctions” (see Compare and Contrast: US and UK attitudes to Preservation Sanctions).

That is not, of course, to say that electronic disclosure / electronic discovery is easy, nor to suggest that there is no room for fundamental disagreement about the application of the rules and precedent to any particular case. The law itself, however, is pretty straightforward.

The same cannot be said for the matters which came before the Court of Appeal in Golden Ocean Group Ltd v Salgaocar Mining Industries PVT Ltd & Anor [2012] EWCA Civ 265 (09 March 2012) which addresses multiple matters of the law governing commercial contracts which, separately and together, explain why the commercial bar attracts some of the highest intellects. The central issue, however, and the reason why HHJ Simon Brown QC sent it to me, appears in the opening paragraph, which reads as follows:

The principal question which falls for decision in this case is whether a contract of guarantee is enforceable where contained not in a single document signed by the guarantor but in a series of documents duly authenticated by the signature of the guarantor. It is common in commercial transactions for a contract of guarantee to be contained in a single document, and it is no doubt convenient that a guarantee should be evidenced in this way. The question however which arises in this appeal is whether it must. Christopher Clarke J, in the Commercial Court, held that it need not – [2011] EWHC 56 (Comm); [2011]  1  WLR 2575. He held that an enforceable contract of guarantee may indeed be found in a properly authenticated series of documents. His decision is said to have been unorthodox and contrary to the understanding of commercial men. It is said to have caused alarm.

Patel v Unite – order for investigation of deleted Internet forum

Here is an interesting judgment, Patel v UNITE the Union [2012] EWHC 92 (QB) (27 January 2012), which Professor Dominic Regan has pointed me to. The target of postings on a union Internet forum alleges defamation and harassment. The union claims that the forum has been deleted and that they cannot identify those who made the postings. What help will the court give to the alleged victim in his efforts to identify those who wrote about him?

The story, put as briefly as possible, is that anonymous union members made observations about Mr Patel which give rise to potential causes of action against them. He claims both that the postings amount to actionable libels and, in the alternative, that he has a cause of action under the Protection from Harassment Act 1997.  The forum had warned its members that their true identities might be disclosed to third parties, subject to relevant data protection and privacy rights.

Patel obtained a court order against Unite requiring them to make a reasonable search for the information and to serve a witness statement. Unite claimed that the information was no longer available, and resisted an order for examination of the relevant servers on grounds which included the data protection and privacy rights not only of those who made the postings but of everyone else who had used the forum.

The judge concluded that he had power to make such an order on the basis that, whilst identification of the alleged wrongdoers may not be achieved as a result, it certainly could not be achieved without the order. Protection against intrusiveness would be achieved by the appointment of an independent expert agreed on by the parties who would provide nothing more to Mr Patel then “information which identifies those responsible for the posts complained or which explains why (if that be the case) they cannot be identified”.

This, said the judge, met the requirements both of proportionality and of protection of privacy and data protection rights.

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Epiq Insights – an eDisclosure newsletter from Epiq Systems in the UK

Relatively few of the eDisclosure / eDiscovery newsletters focus on the UK, so it is good to welcome Epiq Insights from Epiq Systems which is now available as a web page as well as by subscribing to an e-mail. The current edition is here.

It includes links to articles which are either about the UK or which, whilst having a US origin, are relevant to those responsible for the management of UK eDisclosure exercises.

Some of them are things I have already written about –  November’s Metropolitan Corporate Counsel article on predictive coding, for example, and reports of the Epiq Showcase and of the panel on the Challenges of Cross-Border Regulatory Investigations. Others are new to me and it is helpful to be able to pass them on in one go by pointing you to the newsletter.

Of the ones I have not seen before, I refer you in particular to the New Law Journal article on right-sizing the outsourcing of document review written jointly by Epiq’s Saida Joseph and Mark Surguy of Eversheds. Its conclusion is that the on-shore / off-site model for document review is the one which strikes the best balance between cost and risk.

This is a relatively new model for the UK market and one which has attracted a lot of attention very quickly. I gave a video interview yesterday for the College of Law. Quite often when I do these things, I am invited to say what I want to talk about. The College of Law works the other way round – they detect the trends which interest their audience and send me the questions. One of this year’s questions, appearing for the first time, was about managed review