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A difference in legislative approach: The civil litigation model in the United Kingdom compared to the United States. As in many areas of the law associated with civil litigation, it is often enlightening to look across the waters to our American friends. The approach taken to civil litigation and disclosure in the United States in fundamentally different to that adopted in the United Kingdom. In the US the rules for disclosure and discovery are covered by the Federal Rules of Civil Procedure, with generally slight variation on a state by state basis. Civil litigation brought in the courts of England and Wales is governed by the rules outlined principally in the Civil Procedure Rules (CPR), with disclosure issues covered by part 31 of the CPR. In the UK a lawyer is required to make a full disclosure of documents, even those documents which will not be used and may adversely affect the case. Disclosure is however confined only to documents. The Civil Evidence Act 1995 states that a document: "means anything in which information of any description is recorded, and "copy", in relation to a document, means anything onto which information recorded in the document has been copied, by whatever means and whether directly or indirectly". In the United States the process of discovery is more extensive, with disclosure not only incorporating documents but also extending perhaps, to an inspection of the workplace or the deposition of witnesses. It does not however require a full disclosure of unused material as required in the United Kingdom. This widening of the scope of the disclosure and discovery process is frequently viewed as an unnecessary burden on the courts and a methodology, which produces results of somewhat dubious reliability and evidential veracity. Whether the US system is considered superior or not, it does provide an insight into the legislative ethos of civil litigation, and raise questions regarding the validity of a system that requires full disclosure in the UK, but which seems content to bury its head in the sand when it comes to dealing with the issues posed by the disclosure and discovery of electronic documents. What should be clear to all is that any concept of disclosure of electronic documents must be fatally flawed if it relies only upon paper to communicate the information contained within. |
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