Masters Conference 2010 ~ International Judicial Panel on eDiscovery/eDisclosure

On day two of the Masters Conference, Chris Dale, UK's e-Disclosure Information Project; Justice Clifford Einstein, Supreme Court, New South Wales; Senior Master Steven Whitaker, Senior Master of the Senior courts of England and Wales, Queen's Bench Division held an "International Judicial Panel" and here are a few take-away's from their fabulous discussion! The UK & England - The term for e-discovery in the UK is e-Disclosure - The “English rule on cost recovery.” – the “winning” party gets reimbursed for their discovery costs. - Master Whitaker – the scope of disclosure is different in the UK. There’s poor case management and very little judicial training. - The ESI Questionnaire – Using the ESI Questionnaire as a tactical tool. It is a helpful guide to issues which might arise and of which only some may be relevant to a given case. Both parties agree to use it OR the use can be ordered by the court. - The UK’s view is if you don’t find the smoking gun too bad. Australian Discovery - Discussion on the Australian rules of e-discovery and the differences/similarities. Justice Clifford Einstein says judges want to get to the heart of the case. They don’t have time to review volumes of unnecessary information. He also commented that he was glad to see (evident from the Masters Conference particularly) that the development and advancement of e-discovery technology has worked in the benefit of the profession. - The law is meant to be for everyone but the legal system is moving towards favoring the “bigger” guy not the small guy. There will be no room for the small, average person to bring a case because of the costs and the cases involving the largest sums of money seem to be first heard. - Australian approach to judicial education/training on technology – each Judge when appointed goes to school for about a week and is taught by peers with the most experience and grasp on current technologies being used. - Requirement in Australia for electronic production of documents in all cases where the number of documents exceed 200 so virtually all cases involve electronic discovery. Question from Craig Ball: What is in place in England/South Wales that encourages or prohibits the opponent to produce in native format? Response from Whitaker: There must be an agreement on format established early on. Conclusion Courts need to reign in the e-discovery and early intervention by the court is essential.