By | 25th October 2012

Every now and again I come across an article containing a description of an aspect of the e-discovery/disclosure process which really hits the spot.

Craig Ball’s recent article “Are they trying to screw me?” [Ball in your court, 9th October, 2012] is a case in point.

Craig is one of the best commentators on e-discovery matters and his articles are always worth a read but in the spirit of this blog (a partly serious and a partly light hearted look at the world of e-discovery) I want to draw particular attention to this piece because it takes a number of concepts which regularly baffle lawyers trying to come to terms with the jargon of e-discovery and turns them into something easy to understand and remember.

Please read the article but let me paint a brief picture (can a picture be brief?) to whet your appetite for the meat it contains.

Lawyers in both the US and in England and Wales are obliged to discuss what documents they are going to disclose to one another and in what format. In the US there is the Rule 26(f) ‘Meet and Confer’ procedure where counsel are supposed to agree such matters. In England and Wales Practice Direction 31B rule 8 serves the same purpose in respect of discussions before the first Case Management Conference.

Craig has previously described the process as “Two lawyers who don’t trust each other negotiating matters neither understand.”

To illustrate his point he asks if one of the lawyers should be concerned that his opponent was trying to screw him by a proposal in the following format:

Documents will be produced as single page TIFF files with multi-page extracted text or OCR. We will furnish delimited IPRO or Opticon load files and will later identify fielded information we plan to exchange.

and further asks if the lawyer would be screwing himself if he agreed to the proposal.

To forestall the real possibility that neither really knows what the other is talking about, Craig then takes us through the scenario and explains what it is all about and how the lawyer should react.

As I say, you have to read it but one of Craig’s greatest attributes is that he regularly renders words, phrases and concepts which appear to be unintelligible or otherwise impenetrable into language which is easy to understand.

Where else have you heard the effect of converting an electronic document into a TIFF compared to a photograph of a steak?

As Craig memorably and graphically puts it:

“It’s like photographing a steak. You can see it, but you can’t smell, taste or touch it; you can’t hear the sizzle, and you surely can’t eat it.”

Perhaps it’s time we had a new ‘meat’ and confer procedure!

Photo credit: Porterhouse (T-Bone) steak, public domain photograph (