For reasons which I may explain separately, I had banked on the Easter period being quiet on the eDiscovery front. On the whole, that hope was justified, with Twitter relatively quiet, few interesting things to pass on, e-mail volumes down, and almost no phone calls.
What did appear just before the break, however, were no fewer than four important and interesting articles by judges, two from England and Wales and two from the US. I group them together here with the briefest of introductions – none of these people need much help from me to get their messages across.
The UK articles are written by HHJ Simon Brown QC and Senior Master Whitaker who, apart from Lord Justice Jackson, are the two judges best able to cover this ground (that is not saying that they are the only ones who are competent to adjudicate on eDisclosure and case management issues, but only they articulate views for the guidance of court users).
Both these articles appear on the New Law Journal site which is increasingly the source of choice for those who seek thoughtful commentary on litigation matters (and on other practice areas, no doubt). The NLJ has recognised the importance of these two articles by making them free to view.
HHJ Simon Brown QC writes on Costs Control with the heading Costs management and docketing judges: are you ready for the big bang next year? The “big bang” referred to is the wide-ranging package of reforms recommended, and subsequently promoted, by Lord Justice Jackson, and specifically costs budgeting and the acceptance, like it or not, that technology must play an important part both in user interface with the court and in the disclosure of documents.
Judge Brown takes us through the implications of docketing (that is, the allocation of a case, where possible, to the same judge from start to finish), cost budgets and costs management. You can read his article for yourself and see how the proposals lead to this straightforward conclusion:
For my part, I really cannot conceive how you can effectively case manage to meet the Overriding Objective unless you have an informed idea on how much it will cost to order the parties to take particular steps in the litigation. How the case is to be tried is the responsibility of the judge and costs are a crucial feature. It is the signature of the judge at the bottom of the order for directions.
Senior Master Whitaker writes, under the heading A Brighter Future, with the sub-heading A framework for improving practice and reducing the costs of eDiscovery. The messages here – the importance of information governance, court scrutiny of document retention and destruction, the need to embrace technology, the paramount importance of proportionality and of cooperative, collaborative and transparent disclosure – will be familiar to those who keep up with the initiatives of the small but eloquent corps of US judges whose names will be familiar to readers of this blog.
It is sometimes hard to discern a connection between the courts’ procedures and the needs of the businesses which are the primary user base. Master Whitaker puts the users at the top of his article:
Business people are concerned about the rising cost and the unpredictability of e-disclosure, particularly when making pre-litigation decisions as to the viability of defending or prosecuting a claim.
Traditionally, the answers to these problems have been thought to be case management, judicial training, and the use of the CPR. But what else can the courts do to encourage other solutions and somehow to dispel the idea that we always have to be fire fighting?
Turning to the US, we have an elegant and trenchant article by US Magistrate Judge David Waxse with the title Cooperation – What Is It and Why Do It?, published by the Richmond Journal of Law and Technology (JOLT). Judge Waxse begins with an analysis of the mutual benefits which explain why humans cooperate as a general matter; lawyers, he says, prefer to argue, partly because that is how they are made, partly because they think that their duty of zealous advocacy overrides and conflicts with any duty to cooperate, and partly because they make more money that way.
Judge Waxse debunks the zealous advocacy point, condemns (not that he needs to) the “make more money” point, and goes on to a meticulous examination of those parts of the Federal Rules of Civil Procedure which prohibit excessive discovery, impose a duty of cooperation and give judges the duty (not merely the right) to punish offenders. The article ends with a list of principles – ordinary human principles – which are applicable to the relationship between the parties involved in any litigation matter.
The last judicial article to which I refer you is about privacy rather than discovery and is by Alex Kozinski, Chief Judge, United States Court of Appeals for the Ninth Circuit. For reasons which become clear as you read it, it is called The Dead Past and it is published by the Stanford Law Review. It explains, in measured terms illustrated by some pretty lurid examples, how we have come to the point where each additional encroachment on our privacy is accepted because we seem to have surrendered willingly. The closing paragraph summarises the message:
Which is to say that the concerns that have been raised about the erosion of our right to privacy are, indeed, legitimate, but misdirected. The danger here is not Big Brother; the government, and especially Congress, have been commendably restrained, all things considered. The danger comes from a different source altogether. In the immortal words of Pogo: “We have met the enemy and he is us.”
We are extremely lucky to have such articles from knowledgeable and articulate judges. I am glad for my own sake that their work comes to attention in a week when I am not competing for readers’ attention.