Digicel - the Zubulake of England and Wales
The days of limited ediscovery (edisclosure) in England are over. Digicel will have an effect similar to Zubulake in the States, spurring a new level of adoption of edisclosure in England and Wales.
For those of us stateside, disclosure and discovery are not synonyms. Parties disclose rather than receiving a request for production (discovery).
At the ABA International Conference in Brussels and the NYS Bar International Committee meeting in Stockholm, Europeans were aghast at US liberal discovery practices. At the same time, there was a fascination with the ability to go on a fishing expedition with absolute terror for those who would only be the fish.
Digicel opens the doors in England and Wales to fishing, at least in the conspiracy area. Interesting how in the States, the US Supreme Court closed the door to fishing in another telecom case alleging conspiracy.
Digicel v Cable and Wireless, decided in the High Court, Chancery Division tackles:
- what is a document (yes, it includes electronic)
- what is a reasonable search (move over, Judge Major)
- when specific disclosure should be ordered (the court can grant it even if not requested)
- the difference between specific disclosure and specific inspection
- whether to labor shift rather than simply cost shift (the Judge offering the requesting party the opportunity to restore backup tapes themselves, at their cost–requesting party demurred)
- what kinds of documentation are persuasive for burden (detailed)
- proportionality (similar to Zubulake)
- positive and negative search terms (holy O’Keefe and Victor Stanley)
- meet and confer vs. unilateral application of search terms
- backup tapes (ouch, sampling of custodians across all time rather than time slices)
- the Sedona Conference (take what works, leave the rest behind)
- the Cresswell report (edisclosure recommendations, including consideration of the US ediscovery experience)
- the rules of the road (a tour of Part 31 of the CPR)
- looking askance at an applying (requesting party) that does not adhere to the behavior expected of the responding party
- a discussion of parts the EDRM (without mentioning EDRM-processing, review, production)
- a discussion of deskside search by custodians (in situ)
- cooperation regarding format, with the disagreements referred to the Judge at the first Case Management Conference
- not a word about email and privacy
Mr Justice Morgan, of England and Wales High Court (Chancery Division) walks through the facts of the case and the issues presented and thinks out loud about the edisclosure implications.
You’ll see alot of this case over the next month or two.
Fascinating reading. Link below.
Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors [2008] EWHC 2522 (Ch) (23 October 2008)
URL: http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html
Cite as: [2008] EWHC 2522 (CH)
Thanks to the Twitter feed of Rob Robinson.
Filed under Sound Evidence, Technology Counsel.