e is for Evidence

November 1, 2002

Discovery in the United States, although different from civil disclosure in the UK, has one central point that is common to both jurisdictions. The whole point is to allow both parties to have access to the same facts when conducting their cases, and that includes all relevant documents. In both jurisdictions, the definition of a document includes any information held on a computer.

But a hard-hitting attorney in New York would blanch at a UK solicitor’s suggestion that he should look for, and then hand over, documents that adversely affect his client’s own case (CPR, r31.6(b)(i)). US attorneys seem far happier in maintaining rules that make it necessary for the other side to ask for discovery of everything that isn’t covered by client attorney privilege. Many people believe therefore that the US is all about ‘fishing trips’. Not so. With the new tests of proportionality in CPR part 31, the expected volume of discoverable materials in the two jurisdictions are not as far apart as one might think.

The United States also adheres to a concept of proportionality in matters relating to discovery. In the US case of McPeek v Ashcroft, 202 FRD 31 (D.D.C August 1 2001) the court said that ‘. economic considerations have to be pertinent if the court is to remain faithful to its responsibility to prevent “undue burden or expense”. . If the likelihood of finding something was the only criterion, there is a risk that someone will have to spend hundreds of thousands of dollars to produce a single e-mail. That is an awfully expensive needle to justify searching a haystack.’ Therefore, it could be argued that the US system is similar to the UK system in that only those documents that are proportionate will be requested in US discovery. If a US attorney makes a ‘fishing trip’ style request, a court may allow it, but will almost certainly shift the costs to the requesting party in any event. A US attorney that racks up very heavy costs for his client without actually finding anything of relevance is unlikely to retain his clients for very long.

The Americans, like us, have scanning bureaux and coding services but, importantly, they have gone one stage further. They recognise that most commerce and business communication is facilitated with the aid of a PC or two. They have also recognised that the vast majority, over 75%, of electronically created documents are never printed. If three-quarters of all documents are never printed, then discovery of the computer files themselves is necessary.

To search through the contents of the original electronic files themselves is extremely efficient in terms of speed and cost. To search through either paper-based documents, or even digitally scanned paper-based documents, is nowhere near as efficient. Therefore the fact that electronic files can be relevancy searched and manipulated at a fraction of the cost of paper means that the use of electronic files is likely to be more proportionate in more cases. As a matter of tactics, does a US attorney actually want to empower the other side with the ability to search these documents so efficiently? The sceptics amongst us would suggest that it is far better to offer paper-based discovery or disclosure, because it is more difficult to find the needle in the haystack. If that tactic is used, it will almost certainly be a short-lived one. The central purpose of the CPR would seem to be making litigation a more efficient and less costly process. If one party refuses to offer electronic files because it will force the other party to use less efficient means, then it might not be long before the first wasted costs order is seen.

The US courts already seem far more willing to order a discovery process that makes use of the electronic files themselves, rather than printed copies. The reason? To cut costs and therefore make the necessary discovery more proportionate (see Tulip Computers International v Dell Computer Corporation 2002 WL 818061 (D.Del. Apr. 30 2002).

Where is the sense in printing electronic files, and then having the paper copies scanned back into a format that allows them to be used with litigation support software? Wouldn’t it be far simpler to convert the computer files (after relevancy search and culling of duplicates) directly into that same electronic format? They would then be compatible with the existing litigation support software, but the considerable expense of printing and scanning would have been avoided.

The sophistication of ‘e-discovery’ in the United States is now well advanced. Precedent exists for all manner of issues, from discoverability of the fragments of a document that remain after it is ‘deleted’ (Simon Property Group v mySimon, Inc 194 F.R.D 639 (S.D. Ind. 2000)) to court sanctions as a result of accidental deletion of data that was subject to a discovery request or preservation order (Heveafil Sdn. Bhd v United States, 2001 WL 194986 (Ct. Int’l Trade Feb 27 2001)).

As noted above, UK lawyers tend to fall into two broad categories when disclosure of computer files is concerned. Camp A have already read the BILETA paper of Ken Withers ‘Is Digital Different’ and agree that electronic discovery is something that needs to be considered in most dispute resolution matters. Camp B, on the other hand, has not downloaded his paper from the Internet because their PC isn’t working properly, and the kids are away at university and therefore can’t mend it for them. Camp A will prove the concept of ‘survival of the fittest’ in that they will be able to lay their hands on more relevant documents than those in Camp B. They will also reduce the costs of litigation for their clients by working with new technology. Commercial clients will invariably lead the exodus towards Camp A, leaving those in Camp B trying to make sense of it all.

Form N265 ‘List of Documents: Standard Disclosure’ is where the party is required to make his or her declaration that a reasonable and proportionate search of documents has taken place under r31.7(1). If a UK solicitor has not advised his or her client to make notes on the extent to which they have searched their computer files, then they would do well to ensure that their indemnity insurance is up to date. It won’t be long before these disclosure statements are challenged as a matter of routine, and the costs for that challenge must fall somewhere. n

Adrian T.N. Palmer is Business Manager, Electronic Evidence Services, Kroll Ontrack Ltd.

©Kroll Ontrack Inc.