From time to time, I mock the curious assertion that “US discovery is two years ahead of the UK and the rest of the world”. I did it most recently in my article about Legaltech Hong Kong where I referred to “the slightly patronising impression that the US is sending missionaries to a backward world”. I always take care to emphasise that we are very dependent on the very fine technology which emerges from the fire of the Federal Rules of Civil Procedure, and for some of the very good thinking which emerges from the US, not least from a handful of its judges.
Nevertheless, most of US eDiscovery, both as it appears from its rules and as it is practised, leaves us gaping with astonishment at a regime which seems almost designed to pour costs down the drain. The battles over Requests (why not just get on with giving discovery?); privilege logs (no comment); the default assumption that your opponent is a twister who will take every opportunity to do you down (some do, but how much money is spent in assuming that everybody will?); the elaborate games of motion practice which seems so remote from the task of resolving the dispute (we have a few like that, but our gavel-less judges are quite good at stamping on them). None of this is meant to suggest that we in England and Wales are better overall, but they certainly give the lie to the idea that the US is in any sense ahead of us.
Every so often, one comes across a specific example which helps illustrate my point. One turned up earlier this year, in Doug Austin’s interview with Tom O’Connor of Advanced Discovery. His subject is the discovery of native files where the preference in the US (and, thanks largely to its rules, in Australia) is for giving TIFF files.
Advanced Discovery just acquired Millnet, a London-based company. We’ve been having meetings, trying to do the “vulcan mind-meld” and we were talking about this and they were laughing and I didn’t understand why. They said that over in the UK, everybody produces native files. I said “what about Bates numbers” and they started laughing again. They said that nobody cares about Bates numbers over there. Of course, it’s a different system over there, less adversarial, and loser pays, but it was like “wow, somebody understands the best way to do this”. They were aghast to hear that it’s commonplace here.
The exchange of native files as the default derives from the Practice Direction 31B – I had a hand in drafting that as a member of Senior Master Whitaker’s working party. We spent some time on the subject of native files.
We were emphatic that merely handing over “dead” TIFFs was to be discouraged (not necessarily barred – proportionality trumps all, and there may well be cases where TIFF is the proportionate way to go). Quite apart from the fact it actually costs money to create TIFF files, it seemed wrong that the giving party should be entitled to strip out metadata and thus cripple the receiving party’s ability to search the files.
We therefore took as our guiding principle that the recipient should, as near as possible (and having regard to proportionality, of course) be in the same position as the giver.
The relevant wording comes from the General Principles in PD31B reading as follows:
(4) Electronic Documents should generally be made available for inspection in a form which allows the party receiving the documents the same ability to access, search, review and display the documents as the party giving disclosure;
Americans are very fond of TIFFs. Back in 2014, Eddie Sheehy, CEO of Nuix, wrote an article called I give up: TIFFs, you win, in which he said that Nuix had set its face against this “unnecessarily expensive, cumbersome and soon-to-be-replaced form of document presentation” but would introduce a TIFFing module because that’s what the clients wanted. One of the reasons why Nuix is so successful, perhaps, is that it listens to its clients.
Craig Ball rails incessantly against those who insist on TIFFs as opposed to native production. Here is an article he wrote after a visit to Australia which, apart from its discussion about TIFFs and PDFs, includes this passage:
In contrast to our British cousins – who are content to cede e-lunacy to the Yanks – Australians aspire to the American e-discovery experience. Of course, Aussies met at e-disclosure and information governance confabs tend to earn their livings from e-discovery, and understandably envy America’s digital profligacy. But, there’s more afoot than just dollars. A segment of the Australian legal community “gets it” in ways I only dream of seeing back home. And much like America, those who get it have had little success bringing along those who don’t.
If lawyers in England & Wales insists on giving you TIFFs only, you can blow them out of the water with the extract from PD31B quoted above save where costs and proportionality overturn the default. Elsewhere, you may have to appeal to logic and common sense, perhaps backed up with a comparison of the costs to be incurred (on both sides) if searchable electronic documents are to be reduced to unsearchable TIFFs.
The question “So you propose to spend money deliberately making the documents hard to search?” may not move your opponents, but it ought to persuade the court that TIFFing adds expense while reducing search capability.