E-disclosure: Electric avenue

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  • Comments above seem to suggest that the decision in WAPCO somehow showed less tolerance than the decision in Re Atrium and that somehow the Re Atrium decision was needed to counteract the effect of WAPCO. I think this is a fundamental misunderstanding of what Ramsey J was saying in his judgement in WAPCO.

    There are significant differences in the issues complained of in these two cases. In WAPCO, Herbies it was persistent and systematic failures, accidentally leaving out thousands of documents that had to be provided at a later stage, inconsistent redactions (with which I have some sympathy) and a catalogue of errors that significantly increased the workload of the receiving party. Having been on the receiving end of similarly sloppy disclosure, I think it is entirely appropriate that such behaviour is discouraged and penalised.

    The errors in Re Atrium on the other hand, did not significantly prejudice the receiving party. When searching electronic data having a list that accurately describes the documents is only of marginal benefit as you have powerful text based searches that can help you find what you are looking for.

    The idea that WAPCO has somehow scared everyone because if Herbies can get it wrong then so can everyone is silly. The decision in WAPCO is significant because it means that lawyers need to pull their socks up and understand e-disclosure and how to do it properly, not because a well regarded (overpriced) law firm got a slap on the wrist. More often than not when I see sloppy e-disclosure it is due to attempts to cut costs. Clients always balk at the cost of e-disclosure and some lawyers attempt to cut corners rather than to use proper planning and insight and the technology available to be more efficient.

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  • "Who is leading the e-disclosure drive – solicitors, barristers, the judiciary or the client? How can stakeholders work together to improve the use and acceptance of e-disclosure?"

    "Where does e-disclosure’s real benefit lie? Is it in cost or speed and efficiency?"

    Whoever concocted these questions doesn't understand disclosure, edisclosure, or litigation. Those interviewed did well to give answers!

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