A Trans-Atlantic Look at E-Discovery

E-discovery (as it is referred to in the U.S.) or, more accurately, e-disclosure (as it is referred to here, post the Woolf reforms), has received very negative press, mainly due to the huge costs associated with it. But, when all is said and done, is it really that bad?

In examining this question, we must distinguish between the position in the U.S. and here in England and Wales. Either side of the Atlantic, parties will go through similar steps to preserve, retrieve, process and review their electronic documents. However, U.S. courts have imposed headline-making sanctions in a few cases where the discovery process of electronic documents has gone awry and resulting material has been damaged, compromised or gone missing altogether. In these cases, the punitive damages awarded have dwarfed the level of compensatory damages awarded for the substantive claim.

Although I am not suggesting that parties to litigation in this jurisdiction should take their disclosure obligations lightly, our courts will not subject parties to significant direct financial sanction. However, where there has been a deliberate attempt to suppress, omit or damage discloseable material, or where litigants do not abide by their disclosure obligations, they can, of course, still expect to suffer damage to reputation, should the court take them to task on their conduct, or to incur the cost of repeating the disclosure exercise. The court can also draw adverse inferences in respect of any damaged or missing material, which could have a profound effect on a party's prospect of success at trial.

There are other differences between the U.S. rules and our rules, from which litigating parties here can take comfort:

1. The starting point for U.S. litigants tends to be that metadata is relevant. Given the fragile nature of metadata, this has the impact of increasing the need to ensure it remains unchanged during the retrieval and review stages of the discovery process. It also means that, in many cases, it is necessary for U.S. litigants to engage the services of forensic computer experts to assist with the process.

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Source: law.com
By: Vince Neicho