E-cigarettes can be bad for you..

By | 17th April 2012

I was drawn to the case of the unfortunate Tom Holloway (no relation I assure you) of Niceville, Florida by the headline in JusticeNewsFlash.com “E-Cigarette Blows Up in Florida Man’s Mouth…” Poor Tom was smoking an electronic cigarette at home when it exploded in his mouth, knocking out his teeth and part of his tongue and causing a fire in the room.

It must have been extremely painful and one can only sympathise with him. I am sure he was not comforted in any way by the laconic comment at the end of the report that the Food and Drug Administration does not regulate e-cigarettes.

Whatever debate may be emerging on the benefits and dangers of e-smoking, the past month has  proved to be a most fertile time for e-disclosure/e-discovery watchers. Assiduous readers of this and other blogs and commentaries have enjoyed a veritable feast of cases and comments on the subject.

Mr Justice Akenhead has been active in this arena recently (see [2012] EWHC 668 (TCC) (1) Phaestos Limited (2) Mindimaxnox LLP v Peter Ho (2012) QBD (TCC) (Akenhead J) 16/03/2012) and now he has done it again! By this I mean that he has reached a decision which is important in the overall context of the development of the law surrounding the obligations to give disclosure, rather than that he has “put his foot in it.”

His judgment in M3 Properties Limited v Zedhomes Limited [2012] EWHC 780(TCC) is worthy of note because he refused to grant an application for a wide ranging investigation of servers held by the Defendants on the grounds that it would be disproportionate to do so.

Often we see cases where the courts grant applications for further investigation of sources of electronic data but here is a case where the court has decided in the context admittedly of a case worth “only”  £181,000 that such a course is not proportionate. It was alleged by the Defendants that there had been a final settlement of the dispute which had been evidenced by email which the Claimants denied receiving and the Claimants therefore sought an order permitting them to examine the Defendants’ servers to see if the email could be found.

They sought “an order permitting an independent expert forensically to examine Zed’s servers and any backups which it may have to see if either they show the e-mail of 24 April 2007 or if they record the creation of the e-mail at some stage after that date.”

Although there is no reference in the judgment of any evidence produced of the cost of complying with the order, if made, the judge was in no doubt that he should not make the order. There was some suggestion that Zed had destroyed a server and hard drives after the commencement of proceedings and after they had been told by solicitors to retain relevant documents for disclosure.

The judge was having none of it and urged the parties to settle the case through mediation or otherwise.

The Jackson reforms will soon take centre stage once again as the necessary legislation makes its way through Parliament and firms start thinking about how they are going to position themselves in the “brave new world.” Here, the courts can be seen to have grasped the nettle of managing the costs of a case and this is an example of things to come. If Jackson means anything, his reforms will lead to a reduction in costs led by judges exercising their case management powers to ensure that the parties take an economic and proportionate approach to their cases.

The FDA may not intervene in cases of exploding e-cigarettes but it is clear that the courts in this jurisdiction are going to intervene more and more in the future to ensure that the costs of litigation are reduced.