Ride the Lightning

WHAT WE’VE GOT HERE IS A FAILURE TO COMMUNICATE: THE DIGICEL CASE

November 17, 2008

From across the pond, courtesy of friend and colleague Ian Henderson, comes a landmark British decision in Digicel et al v. Cable & Wireless, et al. The parties got themselves in Dutch with the judge in traditional fashion. In the words of the warden in Cool Hand Luke, “What we’ve got here is a failure to communicate.”

Caribbean telecom operator Digicel and British telco Cable & Wireless are in a pitched battle over Digicel’s accusation that C&W unlawfully failed to connect Digicel to its networks, engaging in a constant delaying action and conspiracy to prevent the connection.

So what went wrong? The defendants did not sit down and talk with the claimants about their search for ESI. They simply did it on their own, with their own search terms and methodologies. Claimants were able to show that additional search terms were needed to obtain potentially relevant evidence. Additionally, the defendants cavalierly decided that backup tapes containing potentially relevant e-mails of seven ex-employees were simply too much trouble to restore.

The essence of the Justice Morgan’s opinion says “Wait a minute. Not so fast. You didn’t talk to the other side, made a number of questionable decisions and now you want me to rubber stamp those decisions? I don’t think so.” The Civil Procedure Rules (CPR) of the U.K. required the parties to confer with each other about the scope of a search before it is instituted, which did not happen here.

This is a big case. The court was told that the defendants’ discovery had consumed 6700 hours of lawyers’ time and cost more than 2 million pounds. While the defendants argued that the increased discovery was not proportional to the case, the court noted that conspirators don’t leave a lot of written evidence behind, but might well leave evidence in e-mails. Along the way, Justice Morgan cited approvingly several U.S. opinions, including Zubulake, and the work of the Sedona Conference. In the end, he used balancing tests similar to U.S. tests to determine the extent of discovery that justice would require.

Of the 19 additional terms that Digicel wanted to have searched, the court settled on eight. As the court noted, when one side unilaterally selects search terms without consultation with the other side, it exposes itself to the risk that the court will conclude that the search was inadequate and order further searching. As to proportionality, the court said there is no precise answer as to where proportionality lies, but that this was a determination for the court. The court noted that some of expense would be negated by running negative key word searches to exclude documents which were processed in the first round of searches.

With respect to the backup tapes, the same old song was sung yet again, with claimants contending that the expense and burden were not all that great, and defendants compiling a host of worst case scenarios to demonstrate how wildly expensive and burdensome the restoration would be. The court ordered that the parties meet to discuss how best to work at restoring whatever backup tapes might be needed to search the 7 e-mail accounts in question. Commentators in the U.K. have seized upon the decision as a kind of watershed, opening up U.K. “disclosure” to a more Americanized and broader form of “discovery.”

The decision in the case may be found at http://www.bailii.org/ew/cases/EWHC/Ch/2008/2522.html

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