Battle of the e-discovery bulge

By | 13th October 2011

In the last winter of the Second World War (1944-5), the Germans and the Allies fought a tank battle in the Ardennes region of France which has become known as the Battle of the Bulge, so called because of the initial German advance which caused a bulge in the Allied line as depicted in maps and newspaper reports of the time.

It was one of the bloodiest battles of the war. Official estimates put American dead at 19000 with over 80000 casualties, and German casualties were said to be between 60000 and 100000.

Dramatised in the 1965 film Battle of the Bulge starring Henry Fonda, Robert Shaw, Telly Savalas, Dana Andrews and Charles Bronson, the allied victory marked the beginning of the end of the German war effort as their reserves had been depleted and the Luftwaffe smashed.

In the context of the litigation process, there is a similar battle going on. Estimates vary, but on assessments of costs, the largest item is still, by some margin, preparation and disclosure, which creates a bulge in the process equivalent to roughly 40% of the costs of the whole. Based on that approximate figure you can readily see why every effort is being made to reduce this element of cost because in doing so, the total cost of litigation will be substantially and disproportionately diminished.

Commentators on the e-discovery/e-disclosure scene argue about whether technology has created the problem or whether technology now provides the solution. I am firmly of the belief that disclosure is a legal problem which has always existed in common law jurisdictions and that technology provides a mechanism whereby the problem may be solved. How you best solve the problem of what to collect and how to cull it all down so that the whole exercise remain properly proportionate depends on the particular case, but it would be quite wrong in my view to believe that the technology created the problem in the first place. Rules of Court have always required the parties to disclose the “relevant” documents and technology now provides a means where that exercise may be tailored to the particular circumstances so that the overall search and disclosure is proportionate to the sums involved and the ease of recovery.

So is “beware the bulge” going to become the new litigation battle cry? I suspect not although I suppose anything might emerge judging by the way we are assailed regularly by such weighty matters in the media about as talking dogs or surveys on some trivial subject.

In a survey of over 2000 people carried out for office supplies firm Viking and reported in People Management, 56% of those asked said they had a colleague with a really messy desk Accountants are said to be the messiest at 64% ‘messy’ with lawyers hard on their heels with 61%, while estate agents and those oft vilified bankers only managed 33% and 35% respectively, making them the tidiest professions. [Accountants and lawyers have the messiest desks, People management, 4th October 2011]

The survey was no doubt intended seriously because it is said that germs hidden on work desks cause winter illnesses with swabs of more than 300 desks revealing the presence of bacillus on 90% of surfaces, staphylococcus on 60% and micrococcus 50%. All are known to cause illness. One of the major causes of all this microscopic bacteria is people eating at their desks, so if you are sitting next to someone who has just come back with a particularly spicy takeaway, you may find that you will take away more than you bargained for when you arrived at work this morning.

Office supplies firms such as Viking will no doubt offer to clean up behind the messiest of us in an effort to ensure that we do not all succumb to some nasty infection.

Is it too much to hope that cleaning up your data will lead to a healthier and less bulgy disclosure, making the courts and the clients healthier (or less strained and not so poor) than before?

Photo credit: British Sherman tank, Namur, December 1943 [Wikimedia Commons]