Two articles in succession came under my eye at the same time, one a report of a US judicial panel, the other a summary of pending rules changes in England and Wales. I was going to write separate articles about each of them but, as I read them, a common theme appeared about the roles of judge and lawyers in relation to the management of eDisclosure / eDiscovery.
I did not go to the Georgetown Law Advanced eDiscovery Institute held in Washington at the end of last week. I actually reserved a flight, but cancelled it when I realised how much travelling I would be doing in November.
As it turned out, I barely had time even to read the live tweets from Georgetown and, in any event, I can be reasonably sure that others will record the key points. First out of the traps, as always, was Monica Bay of Law Technology News with an article Impatient Judges Push Lawyers to Dive into E-Discovery and the subtitle Lawyers need to be more proactive in early stages of litigation, judges preach.
At the same time, New Law Journal has published a helpful article by Garry Bernstein of First Advantage Litigation Consulting. Called Held to Account, it summarises simply the practical effect for lawyers of CPR 31.5 which is due to take effect in April 2013.The common thread between the two articles is the role of judges in managing eDisclosure / eDiscovery, and the duty of lawyers to inform themselves, each other and the court, and it is these things on which I focus here.
The judges of England and Wales have a duty of “active management” requiring them to self-start, and that, as Garry Bernstein’s article shows, will increase from next April; those in the US, whilst no less responsible for the “just, speedy and inexpensive” progress of cases, are cast more as arbiters of disputes, including procedural disputes, brought before them.
Let us look at the quotations from Judge Shira Scheindlin, Judge Paul Grimm and Judge Andrew Peck which Monica Bay gives from the judicial panel at Georgetown.
There was discussions about the role of the judge to intervene: “The question becomes,” said Scheindlin “at what point does the court feel the party must defend its discovery? At what point do you second-guess? No court in its right mind does that sua sponte [of his or her own accord]. I wait until someone complains’.”
There was emphasis on the duty of the lawyers to take the initiative: “Grimm addressed the importance of pre-motion conferences, and urged the audience to take them seriously and get involved early. “It takes a particularly dense litigator not to get the message.” Scheindlin agreed, urging lawyers to take advantage of the conferences to work out discovery protocols.
What discovery is reasonable? Grimm noted that there are “overlapping concepts on the notion of proportionality,” and predicted that there will be a continuing “dialogue going on over the next couple of years.” There will be more attention to cost allocations and shifts, he predicted, and “incentives to avoid overbroad discovery.” [Discussion about two particular cases] triggered the judges to lament about how parties are not providing sufficient information to the court to assist judges in making proportionality decisions.
We have a long way to go with education. Peck said “We still have to remember that the key difference between the old days and electronically stored information is that so many lawyers still do not get it. There is a lot of learning that still has to be done”.
What can we pick out of this which lies in common between the US and UK practice? For one thing, parties are required to discuss eDisclosure / eDiscovery at an early stage. In the US this is at the “meet and confer”, while in the UK it is part of the required discussions ahead of the case management conference – an obligation which will extend to a much wider range of cases from April 2013.
What is different is the express duty of active management imposed on judges under the English rules. The obligation exists already; the express intent behind Lord Justice Jackson’s rule changes is to compel judges to roll up their sleeves and get involved in decision-making, not only about the scope of disclosure but also about the method and the costs.
Where, however, are judges to get the expertise needed to perform this function? However good the new judicial training is (and the jury is out, as it were, on that) little time has been given for case management, still less for eDisclosure specifically.
The answer is that they must get it from the lawyers appearing before them at case management conferences and in disclosure applications in the same way as they are told about the issues, the facts and the law by the lawyers. We cannot expect judges to leap fully-formed into this, but where a US court will “wait until someone complains”, as Judge Scheindlin put it – a perfectly proper attitude under the US rules – the UK judges must engage in active management of his or her own accord.
Garry Bernstein’s article about the new rules needs no summary from me, but I take out two points made by HHJ Simon Brown QC which, as quoted in Garry Bernstein’s article, read as follows:
- Be warned—the days of turning up at a CMC, agreeing to standard disclosure, expecting the judge to rubber stamp such an order, and then starting on an unknown voyage of discovery will be over.
- Be encouraged—those who prepare their strategy for the case at the outset and carefully budget for disclosure in collaboration with their opponents well before the CMC will get their budgets approved and those firms will not only survive, they will thrive.
The real point, as I see it, and whether in the US or the UK, is not what the judges want but what is right, within the rules, for the clients and for the strategy of their case. One can see that the two statements above make sense by inverting and conflating them to read something like this:
Pole up to the CMC with no idea about the scope of your own disclosure, still less that of your opponents, with no strategy for managing the case and no clue about the costs, and the judge will rubber-stamp your joint agreement for standard disclosure.
I think it is perfectly possible, alas, that some judges will be content with such an approach notwithstanding their duty of active management. I am not convinced that the clients will feel well served by it, and most judges will do their duty.
The differences between the two jurisdictions narrow when one looks at what was said by Vice Chancellor Laster in EORHB, Inc. v. HOA Holdings, LLC. (the “Hooters” case), on which I wrote here and here. I will not repeat what I have already said about that case save to observe that what we see is a US judge adopting a rather UK approach – the parties had not prepared properly for discovery as the judge would have liked, and appeared unaware of the multiple options available to them for managing eDiscovery; the judge took the initiative and told them what he was expecting, requiring them to come back with a better answer if they had one.
This is a rather different approach from that articulated by Judge Schiendlin and quoted above about waiting until someone complains; it is consistent with Judge Grimm’s point about parties giving insufficient information to the judge and with what Judge Peck said about there being “a lot of learning that still has to be done”.
When I said above that Vice Chancellor Laster was “adopting a rather UK approach”, I mean a rather idealised version of what we can actually expected from UK judges. However seriously they may take their duty of “active management”, few of them will be able to distinguish accurately between predictive coding and any other method of refining large document collections – nor should we expect them to. It is the job of the lawyers to set out the options and their implications based on their early collection of information about their clients’ data, on a knowledge of the options which exist to manage that data, and on the outcome of their informed discussions with opponents. In the UK, that duty, and the matching duty of the judge to make proportionate decisions is codified in the rules and will be more so after next April. The sub-title to Monica Bay’s article is Lawyers need to be more proactive in early stages of litigation, judges preach. The message is the same in both jurisdictions.