TOM BARNETT of Alix & Partners was formerly Special Counsel at Sullivan & Cromwell LLP and is one of the pre-eminent thought leaders on the development of E-Discovery best practices. He was a co-author of the Sedona Conference Principles on Electronic Document Production. He also serves on the Advisory Board of the Georgetown University Advanced E-Discovery Institute.
In an austere and airless U.S. federal district courtroom, a magistrate judge sits at the bench in a discovery hearing with a furrowed brow and a look of frustrated exasperation on her face. An attorney for the plaintiff in a breach of contract lawsuit refers to dozens of large trial-exhibit display boards, reviewing in painstaking detail every technical glitch in a production of electronically-stored information which, he argues, make the entire production unreliable. As the technical language gets denser the eyes of all but the two opposing technical experts start to glaze over. It is a fight between avoiding sleep and a migraine headache.
Next, the attorney representing the defendant launches into a breathless explanation of why the production turned out the way it did and how the other side never complained that the data were altered, that numerous emails and attachments were missing from the production, and that information from several large databases was never produced. The judge tries hard to remember what the actual case is about and wonders why the parties seem intent on embarking on a highly contentious separate trial solely about discovery. She begins to question her decision to leave her job as a federal prosecutor.
Meanwhile across the Atlantic, in a cool and well-appointed conference room overlooking a foggy London skyline, the arbitrators and the parties in a commercial dispute, over the acquisition of a company that turned out to be worthless, discuss the scope of information that will be exchanged in order to resolve the dispute. The arbitrators and one of the parties are in perfect accord: everyone already has everything they need. There does not need to be any disclosure at all. And by no means do they want the kind of discovery side-show common in U.S. federal courts.