Those who skim articles rather than read them might conclude that this post is anti-US in tone. It is not – half my audience comes from the US and I am interested in balanced views not competing claims for purity. We all stand up for our own Discovery regimes; what we do in our own backyards is up to us. What matters in the context of cross-border discovery is that we will get nowhere if we treat the rest of the world as backward colonies who can be brought to the true path of eDiscovery by shouting our own merits at them.
Should I bother to reply to Ralph Losey’s recent article e-Disco News, Knowledge and Humor: What’s Happening Today and Likely to Happen Tomorrow? We are used to the idea that US lawyers think that their approach is the only route to “the whole pesky notion of truth and justice” as Ralph puts it, and that the “whole truth and justice approach that us Yanks have” is to be distinguished from the allegedly lax approach everywhere else. We are accustomed to the US idea that Yurrup is just one big place which has yet to learn the merits of the American way. We can give as good as we get, if we choose to, on the respective merits of our different systems and can attempt to understand what is different – not just in law but in culture – which explains our varying approaches to eDiscovery. If we are suitably objective about it, we can learn from others where that is appropriate. Or we can just write long blog posts rubbishing everybody else’s approach.
The reason it matters is that, at about the same time as Ralph Losey was pressing the “Publish” button in Orlando, I was at the Sedona WG6 Cross-Border and Data Protection Programme in Hong Kong arguing that we will make no progress in easing the path of trans-jurisdictional discovery if we simply shout our own terms of art at foreigners. As I put it in Hong Kong, never mind learning to speak Chinese – first you must stop speaking American and expecting everyone to jump to attention. It really matters very much to challenge the views with which Ralph Losey spatters his article. Continue reading