THE BIG DIVIDE BETWEEN ED IN THE U.K. AND THE U.S.

Curiously, when John and I visited the U.K. last week, there was no hesitation amongst any of our interviewees when asked to define the major difference between electronic discovery in the U.K. and the U.S. Everyone agreed that “electronic disclosure” (as it is known in the U.K.) is principles based, whereas electronic discovery in the United States is rules based. To a man (yes, this seems to be primarily a male domain across the pond), our English friends like the principles based system better. Frankly, after listening to them, so did we.

In the U.K., attorneys must certify to the court that they have fully disclosed relevant information to the court. If their certifications are later proven false, they can be “stricken from the roll” – in our terms, disbarred. As a result, attorneys are well motivated (ethically and practically) to sternly admonish clients that there will be no “hide the ball” tactics. In this country, we tend to administer sanctions, but we have only to read the headlines to realize that there is very little fear of disbarment. In fact, attorneys seem to be pushing the envelope when it comes to playing fast and loose with e-evidence here.

The next few days will be spent assembling our notes from our meetings and composing an article based on our findings. Just to whet your appetite, here are some of the experts who were kind enough to meet with us last week:  Laurie Watt (Senior Counsel) and John Sykes (Partner) from Charles Russell, Darren Pauling (Forensic Tech Director Operations) and Rahoul Bhansali (Senior Manager, Forensic) from KPMG, Adrian Palmer (Director) from Palmer Legal Technologies, Ian Henderson (President) from Advanced Forensics, and Dr. Ian Mitchell and Dr. Carlisle George (Senior Lecturers in Forensic Computing from Middlesex University).

Our all star cast gave generously of their time and experience, as a result of which I have nearly 100 pages of notes. This, of course, is why God made weekends, so we could be manacled to our home computers rather than our work computers. With luck, an article will emerge next week. The cross border implications of electronic discovery has been a hot topic recently, so hopefully this will be an article of great interest. I’ll post it on the Sensei site and link to it from Ride the Lightning as well.

Till then, go home tonight and start the weekend right by downing a pint with your mates. Cheers!

E-mail: snelson@senseient.com      Phone: 703-359-0700