Weapons of Mass Discovery

By | 25th January 2010

Two matters caught my eye last weekend which I would like to share with readers of this blog.

The first was the announcement that former Prime Minister, Tony Blair, will give evidence to the Chilcot Inquiry on January 29th 2010. In particular, the former PM will face questions about his government’s use of intelligence which was later found to be flawed.

This blog is, of course, strictly apolitical, but the announcement that Tony Blair is to become only the third PM and the first Labour PM in modern times to face a public inquiry (Margaret Thatcher gave evidence to the Franks Inquiry set up after the Falklands War and Edward Heath gave evidence to the Bloody Sunday Inquiry) is certainly noteworthy and caused me to recall the debacle over weapons of mass destruction, as to which see more below.

The second item was an article in The American Lawyer of 14th January, entitled Judge heaps e-discovery costs on plaintiff.

A title like that just has to excite anyone engaged in the business of Smart e-Discovery and so it proved. I will let you read the article yourselves by following the link above but I can tell you it was the usual tale of disclosure woe, resulting in the Federal Judge in Atlanta ordering the losing party in a patent infringement case to pay the huge sum of $268,000 in costs for the services of a computer consultant hired to fulfil certain demands relating to discovery.

The actual details of the case need not detain us here, although the ruling is clearly important and appears to be part of a trend where courts on both sides of the Atlantic are increasingly seeking to get to grips with the costs of e-disclosure and are unwilling to allow disproportionate costs to be recovered.

What really delighted me, however, was the comment made by Alston & Bird partner, Laura Lewis Owens, a lawyer who has clearly dealt extensively with e-discovery issues. (I ought to make it clear that Laura had nothing to do with the case, as far as I could tell, and was merely asked to comment on the ruling).

She is quoted as saying that “the advent of e-discovery and the resulting massive requests for computer-stored data can be used as a tactic to force settlements on defendants who are not able to bear the growing cost of e-discovery,” a tactic she said she once heard described as “a weapon of mass discovery.”

It would be a delicious irony if, as part of his preparation for his appearance before the inquiry, Tony Blair had to trawl through a mountain of emails and other computer based documents on the issue of weapons of mass destruction.

For him, (and I suspect to many of us) that would truly be a weapon of mass discovery!

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