By Patrick Burke
October 19, 2009
It’s unusual enough to hear UK and US judges speaking on the same eDiscovery panel, but more unusual to hear them all agree on approaches they apply in cases in the two legal systems. That was the take-away from the Master’s Conference in Washington DC on October 14, 2009, where I moderated a compelling panel consisting of Senior Master Steven Whitaker (UK), His Honor Simon Brown QC (UK) and US Magistrate Judge John Facciola. The discussion was launched by Chris Dale of the UK’s eDisclosure Information Project, who opined on the historical significance of this discussion among the leading lights of UK and US judicial thinking in the eDiscovery area. Dale noted that the exchange among these jurists began at a panel in London in May 2009 – a panel which also included Chief US Magistrate Judge Paul Grimm – and was intended to be an ongoing cross-border dialog.
The common ground among the judges was judicial case management that endeavors to encourage early attention to electronically stored information needed for effective fact-finding, yet limit the cost of electronic disclosure/discovery to that which is “proportionate” to what is at stake in the litigation. The UK judges can now point to several court decisions that enforce electronic disclosure obligations under their Civil Procedure Rules and Practice Direction to Part 31, including Judge Brown’s October 8, 2009 decision in Earles v. Barclays Bank Plc, in which Barclays’ award of costs were reduced due to its failure to conduct adequate searches of its electronic data. Both UK judges are known for their efforts to develop UK-wide case management procedures that will enable courts to ensure sufficient but non-excessive electronic disclosure is pursued by the parties.
Judge Facciola spoke of how he attempts the same in his cases but often find parties unable to agree on the value of claims. Judge Facciola sees it as a court’s obligation in certain cases to look beyond dollar amounts when the litigation involved difficult-to-value causes of action, for example when disabled citizens were forced to endure substandard paratransit services as in Disability Rights Council of Greater Wash. v. Wash. Metro. Area Transit Auth., 2007 WL 1585452 (D.D.C. June 1, 2007). He also reiterated a point he had made in his keynote the same morning, that he considers it one of his primary roles to solve problems among the parties – including eDiscovery disputes – and that issuing frequent sanctions for eDiscovery shortcomings could tend to undercut his ability to urge compromise where possible. In any case, he shared the passion of the UK judges for early attention to electronic disclosure/discovery issues in a spirit of cooperation akin to that proposed in the Sedona Conference’s Cooperation Proclamation.