Civil litigation: ‘Discovery’ is not the same as ‘Disclosure’ (forensic e-providers please note)

Every other day, it seems, I receive marketing emails or phone calls from firms offering forensic services in the field of electronic document disclosure. What some offer me, though, is an ‘e-discovery‘ service. Save your time! I am a solicitor practising in England and Wales, where Lord Woolf abolished ‘discovery’ in the late 1990s (replacing it with ‘disclosure’), and not an attorney in the USA, where what is there called ‘discovery’ still exists.

It’s no good proclaiming that ‘e-discovery’ in the USA and ‘e-disclosure’ in the ‘UK’ are essentially the same. They’re not (at least not in England and Wales – whatever practices are going on north of the border (in Scotland) or across the North Channel (in Northern Ireland) being ones which they are free to indulge in in the privacy of their own jurisdictions).

It was famously stated that the USA and the UK are two countries divided by a common language. It is also the case that they are (at least as far as England and Wales are concerned) two countries divided by the common law. Just as the words ‘pants’ and ‘trunk’ mean different things on either side of ‘the pond’, so – before it was abolished in England and Wales – ‘discovery’ had different meanings. For instance, in the USA, ‘discovery’ included/includes pre-trial exchange, not just of documents, but also of oral information in the form of depositions of potential witnesses.

Unwitting US attorneys were prone to make applications under the applicable Hague Convention for the taking of evidence from witnesses abroad as an express part of the US ‘discovery’ process. This often lead to the refusal or severe pruning of such requests by the English courts, which, under English law, were permitted only to seek evidence for use at trial and not as part of a US style discovery ‘fishing expedition’.

Lord Woolf’s change was not to apply a new name to the same process, but to abolish one process and to give a new name to the replacement process, so as to mark the change. ‘Disclosure’ was meant to be less extensive than ‘discovery’ (we used to call it ‘kitchen-sink discovery’, because your listing of documents was so wide that it might even include ‘the kitchen-sink’). Thus, the English/Welsh procedure became even less like that in the USA.

As things turned out, the growth of electronic communications resulted in a huge increase in the amount of documentation produced and in people committing to email matters which had previously been dealt with orally by phone or meeting. The end result was that the change to ‘disclosure’ did not limit the overall volume of documentation exchanged between parties to litigation in England and Wales, though attempts to ‘tame the beast’ continue.

Electronic document disclosure is an area where two types of expertise have to come together: e-document technology and civil litigation procedure. If one is to work with someone who is an expert in the first, one needs to know that he or she already has insight and understanding of the second, as one will not have the time or funding to teach it. I refer to ‘he or she’ because the most valuable item one is purchasing is not access to software, but the skills of those who operate the software.

So, providers, if you want to sell your services, understand the market into which you are selling and, to show that you do, please use the correct terminology!

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.