E-Discovery and E-Disclosure: Same difference?
An overview of similarities and differences between E-Discovery and E-Disclosure
In the United Kingdom  (UK) the generally accepted term is E-Disclosure. In the US it is typically referred to as E-Discovery.
Is it just a linguistic variation of the same discipline or do the two terms really reflect a difference in concepts or reality? Are they two sides of the same coins or do these two terms reflect substantial differences?
This series of Blog aims at comparing current positions, perceptions and underlining key trends as this discipline continues to evolve. This blog series is not an exhaustive comparative study between two different judicial systems or a socio-strategic analysis of E-Discovery as a litigation strategy. Rather we will focus on exploring some of the differences and similarities, real or perceived, between the US and UK view of E-Discovery.
This blog series is based on recent discussions with and observations from a number of practitioners, each representatives of the various constituent groups of the E-Discovery space:
- parties (claimant and defendant, in this paper we will focus on corporations and their in-house legal departments),
- law firms representing and acting on behalf of the parties,
- vendors supporting the parties and
- last but not least, the judiciary, and especially the role of the individual judge.
First, before we look at the differences and similarities from the viewpoint of these various practitioners, let's explore the terms themselves as they provide a first taste of the difference between E-Discovery and E-Disclosure.
Modified EDRM Model: E-discovery & E-Disclosure
US: Focus on early stages of EDRM model
The US version of the term would seem to imply a wider scope: "discover", focus in on finding the information or rather ESI (Electronically Stored Information) as it pertains to E-Discovery and only once it has been discovered, and of course reviewed is it presented to other parties and judge.
Interestingly, the term E-Discovery does not in itself imply any notion of having to share, or disclose the ESI with any other party. Indeed, for a number of decades, understanding what documents (paper or else) are within the corporation has been a driver for Records management and Information Governance practices. In the Records Management arena, carrying out inventories of documents was not done with the view of having to share them with any other party and especially not within the context of a contentious dispute.
E-Discovery also implies a certain degree of "expertise": it is not just E-Finding, or E-Searching, it is discovering document that might not be identifiable readily. This is turn would imply the reliance on technology in this "advanced search" process and highlight the Forensics aspect as the heritage of E-Discovery.
It can be argued that E-Discovery has evolved from Records Management and is applied within the specific context of a legal case and for the purpose of finding information relevant to a case, a requirement that emanates not so much by a desire or need to maintain adequate document storage policies but rather imposed by a court of law.
The term E-Discovery has of course now evolved and the EDRM model (Electronic Discovery Reference Model) cover all stages of the information lifecycle as illustrated in diagram 1
UK: Focus on final stage of EDRM Model
On the other hand, E-Disclosure as it is referred to in the UK would imply that it is focused on the outcome, the specific purpose of discovering this ESI: so that it can be disclosed to relevant 3rd parties and especially the Judge. This is more generally referred to as "Presentation" in the EDRM model and is the last stage of that model.
The term stems from the requirement of parties to disclose relevant information so that the judge can form an opinion on the case. In that respect, E-disclosure is simply the disclosure of information that happens to have been created or reside in an Electronic form.
It can be argued that E-Disclosure therefore has a more judicial tone to it as it reflect a requirements of participants in a trial, not a technical expertise that E-Discovery implies.
It also has a narrower sense as it does not seem to interest itself in the "how" of E-disclosure which is a key area of conversation and interest in the E-Discovery world.
Next Blog in the series: Why is E-Discovery so much more prevalent in the US (the obvious & less obvious reasons)
Strictly speaking the correct term should be “England and Wales” as there is no “UK law” or a single UK Jurisdiction as such, as a jurisdiction; however, for sake of familiarity I will refer to the UK in this article.