We are all believers now

By | 21st October 2010

An eye for an eye and a tooth for a tooth is a concept with which most people are familiar, even if they do not know its origin.

The concept appears in the Old Testament, the Koran and the Talmud and probably elsewhere as well. It is even referred to by Jesus in the Sermon on the Mount: 

38. You have heard that it was said, “An eye for an eye and a tooth for a tooth.”

Matthew 5:38. 

Today’s litigation is not so much about eye gouging and/or tooth extraction as about cooperation and proportionality, while reserving the right to be as beastly to your opponent as possible if the rules permit and you are prepared to risk having to delve into what must be a deep pocket. 

I have heard it said that “proportionality is what differentiates restitution and retribution from revenge by proxy” but many people will be familiar with the use of the concept in relation to limiting the powers of the various European institutions. The idea is to limit the actions of the Commission or other agency of the European project to what is necessary to achieve any given object so that the extent of the action contemplated is in keeping with the stated aims.

In terms of the criminal law, the punishment should fit the crime. In international affairs we often hear that such and such an action is disproportionate as in criticism of Israeli reaction to bombings of their territory emanating from Gaza.

To litigators, the concept of proportionality came to prominence when the Woolf reforms of 1999 came into effect and for some time now lawyers have believed that they knew what it meant. But just as an eye for an eye may not be the answer to an injury causing loss of an eye (these days courts in this country are reluctant to order the literal taking of the eye and the order of the day is some form of compensatory damages), knowing what amounts to proportionality is not as easy as it seemed. In my colleague James Moeskops’s phrase, “the fulcrum of proportionality is changing”. 

Put simply, advances in technology mean that what used to be disproportionate may not always remain so. What was expensive and time consuming and even well nigh impossible yesterday may not be so today and an assessment of what is proportionate needs constantly updating. 

Examples are everywhere. For those who are interested there is a selection of articles in the News section of the Equivio website [equivio.com/news.asp]  dealing with predictive culling.  

Other examples include keyword searching of audio and even video tapes in the same way as the written word can be searched by the use of keywords. But the one which really caught my eye was the Index Engines Case Study, which describes how e-discovery consultant eClaris was able to process and review over 500 terabytes of tape data in just 47 days!

eClaris processed over 1200 backup tapes containing 5 years worth of data, consisting of compressed email and unstructured files in Symantec Backup Exec format. The court had allocated 60 days for discovery of the contents and the processing and review was completed with time to spare. Index Engines supported the 2.2 billion electronic records, including email and unstructured files. 

Does this mean that everything is now proportionate? Of course not! But it does mean that lawyers need constantly to be aware of what the technology can and just as importantly cannot do and what it costs before they can possibly convince their clients, their opponents and even the judiciary about what is proportionate or not. For example, it is just not good enough to decide unilaterally to ignore a whole area of potentially relevant data on the grounds that it is too expensive to access or too difficult to restore or retrieve as the Ministry of Justice found to its cost in Goodale v Ministry of Justice.

Everyone must now know that on October 1st the new Practice Direction on electronic documents (PD31B)came into effect. If you did not receive my email alert then please let me know!

We are all believers now! Aren’t we?