Huron Legal has republished the useful article called eDiscovery / eDisclosure in the EU written for ILTA by Jonathan Maas of Huron Legal and Vince Neicho of Allen & Overy. It begins with a guide to what “Europe” is, aimed at those who lump everywhere from Gibraltar to Skalluvaara under the same jurisdictional umbrella, and then gives an overview of the disclosure regime in England & Wales.
I wrote about that here and won’t repeat myself now. Seeing it again reminds me of an article which I wrote back in December 2011 called You say eDisclosure, I say….Whatever is right for the context. Its focus was on the terminology rather than the practice, addressing the commonly-asked question as to what is the difference between the terms used to refer to the process of “uncovering” (which is where “discovery” originally came from) the documents and other things (not everything which is disclosable / discoverable has the conventional characteristics of a document) needed to establish evidence in litigation.
You can deduce my attitude to this from the word “whatever” in the title of that article, with its subliminal message that the terminology matters rather less than some knowledge of the relevant rules, tools and practices. Apart from the narrow point that “disclosure” is used in the English Civil Procedure Rules, and should therefore be used if that is the context (just as the CPR uses “ judgment” rather than “judgement”), I don’t much mind which word you use.
It may matter, however, in dealings between US eDiscovery providers and English lawyers. The latter are not only very fond of precision in language and of their terms of art, but also inherently suspicious, even now, of technology emanating from the US to deal with a problem which many of them see as an overrated incursion of newfangled ideas into practices which have remained unchanged since Gutenberg was a boy. Indeed, the reason for my first visit to the US, many years ago, was to help me address the reaction of many UK lawyers who, when encouraged to think of technology solutions, would spit “eDiscovery – that’s something Americans do, and look what an expensive mess they make of it”.
We have eliminated much of that attitude now, I think, seeing it eroded by the harsh practicality of having to deal proportionately with large volumes of data, but there is a residual distaste for the subject among many lawyers. Those who would sell eDiscovery / eDisclosure solutions to UK lawyers do well at least to get the terminology right.
You can’t all hire Jonathan Maas with his 30 years of eDiscovery / eDisclosure experience, but some local knowledge certainly helps.