DRAFT JUDGMENTS AND THE USE OF EMAIL EXPLODERS: MORE CAUTION IS NEEDED

One particular aspect of the judgment in  Optis Cellular Technology Inc & Anor v Apple Retail UK Ltd & Ors [2021] EWHC 2694 (Pat)that requires highlighting is the judge’s consideration of the use of “e-mail exploders” used by the parties when a draft judgment is sent out.

THE CASE

The judge was considering aspects of an alleged (but actually untrue) disclosure a draft judgment. The non-disclosure of a draft  judgment is essential in every case. In intellectual property cases, in addition, disclosure can have major commercial ramifications.

 

THE USE OF EMAIL EXPLODEDRS

The judge commented on the use of email exploders which expanded, greatly, the number of people who saw the draft judgment.

77. The first is the number of people who saw the draft judgment. I do not know exactly how many it was, but it was scores of people. The reason for that is that most of the barristers’ chambers and solicitors’ firms who received the judgment use what are called e-mail exploders, where a single inbound e-mail to a central address is promulgated to a wider dissemination list. In the case of EIP, for example, that was almost two dozen people, and although they each had some reason to be involved with the litigation in some way, they really did not need to see the judgment and they did not need to be involved for the purposes of giving instructions.
  1. I think this use of e-mail exploders, and provision of draft judgments to an excessive number of people, is not in the spirit of the Practice Direction, or of the Patents Court Guide, and thought should be given to curtailing it. However, I do make clear that it seems it has over time become a fairly general practice, and that there was nothing malicious in doing it, on anyone’s part, in the course of this case. I will give thought to it myself, and no doubt the parties and others reading this judgment will too. Clearly, a way of disseminating a judgment only to those people who really need to give instructions has to be found, and the responsibility to a considerable extent must lie with the parties, who need to communicate with judges’ clerks a more concise list of people who really need to receive draft judgments.