KPMG recently published a report on litigators’ views on e-disclosure. It tells us that lawyers are concerned about the cost of handling e-disclosure exercises and that they feel the changes to Civil Procedure Rules (CPR) Part 31 have not had much of an impact. In fact, in some cases they have merely added to the confusion.
So what new insights does the survey give us on how we might improve the situation?
Lawyers want clarity and guidance. Interestingly, the survey suggests that they would look to the judges and/or the rules for this. The views are that judges need more training, that the rules could be firmed-up in places, and that an independent body should be set up to consider best practice were prevalent.
However, is this enough?
Judges will always need a certain level of guidance from the lawyers. The rules will never provide the full answer because every case is different and requires a different methodology in order to be reasonable and proportionate. And independent bodies already exist (although one looking specifically at this issue would do no harm).
My view is that this has to start with the lawyers themselves.
In some ways the phrase ‘e-disclosure’ is a red herring. This is just disclosure.
In order to decide what you disclose, you take a reasonable and proportionate approach. Nothing has changed. It is just that being reasonable and proportionate and acting in the client’s best interests in today’s business environment is likely to involve electronic evidence and electronic review methodologies.
When I was a practicing lawyer I thought that technology was for someone else to think about. However, it is the lawyer who is going to have to make the decision as to what is reasonable and proportionate in his/her particular case.
How can you do that if you don’t understand the technology; where the evidence is; what that means; how it can be collected and how that can affect the evidence; and what the numerous review options are and how they will impact on costs?
Responsibility of lawyers
It is really this lack of comfort that underpins the results of this survey. Lawyers are looking around for someone to give them the comfort they need. They look to the judges for guidance and say that the judges need training.
But judges are often faced with unfamiliar areas in cases and it is for the lawyers to guide and educate them. Therefore, the lawyers need to guide and educate themselves.
Putting the word ‘electronic’ in front of ‘disclosure’ seems to send a message to some lawyers that they are absolved of the responsibility of fully understanding what is happening to the evidence. I hear senior lawyers say they are too old to understand this. Why? Would they say that about the new Companies Act?
Lawyers understood paper, now they need to understand the electronic world and the tools available. There are hundreds of different tools in existence to support them in their work, and they need to get on top of this.
They can delegate some of this thinking, but not all, because they are the ones who need to take the initial view on what is reasonable and proportionate.
There are a myriad of questions that lawyers need to be asking at the outset of a case involving electronic evidence. But they can be summed up in one word: planning. The survey itself supports this by indicating that those lawyers who thought about this early on (i.e. well before the first CMC) were the ones who ran into fewer problems down the line.
Soon, I believe, we will not only see lawyers running into practical problems (like ‘oops, I forgot to ensure that my review tool deals with foreign languages’) but will also start to see cost orders against them for not planning sufficiently (perhaps, for example, if they forget to ask about back-up tapes).
Lawyers need to start early in a case and fully educate themselves as to the options available. Then they need to write the thought process down as to why they decided upon a particular methodology in a particular case. Only then can they start to feel comfortable that they are behaving in a reasonable and proportionate fashion.
And the good news is that much of the technology is a lot easier to understand than the new Companies Act.
Alex Dunstan-Lee, forensic legal specialist, KPMG Forensic