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21 March 2011
The most recent e-discovery practice direction has been pitched just right and should be followed as a matter of course, says Vince Neicho
A practice direction (PD) supplements the Civil Procedure Rules, providing binding direction as to the way in which each rule should be interpreted and applied in practice. So one year after ’PD31B: Disclosure of Electronic Documents’ came into force in respect of e-disclosure, it is time to ask if it has it worked and if it has changed anything.
On the whole PD31B and the accompanying electronic documents questionnaire (EDQ) have been successful, but the potential is only just being realised. The fact that people are considering and discussing the PD is a big step forward.
Prior to the introduction of PD31B - and the judgment in Digicel (St Lucia) & Ors v Cable & Wireless & Ors (2010), which was delivered while Senior Master Whitaker’s working party was drafting the PD and EDQ - the requirement for parties to discuss their proposed approach to disclosure was largely ignored and not enforced by the court. Indeed, many practitioners were not even aware of the requirement. It is heartening that such discussions now take place in many more cases.
The spirit of cooperation between parties at an appropriate level has been encouraged by the Litigation Support Technology Group (List) since its inception in 2003. Indeed, List was founded so that relevant professionals could explore to what extent they could work together to achieve efficiencies.
List is comprised of litigation support professionals and others who have everyday involvement in e-disclosure matters at law firms, corporate organisations and in government departments and agencies, and Whitaker is the group’s honorary president.
In addition to discussion and cooperation components, other key elements of the PD include a clause that facilitates the EDQ. Its purpose is to elicit from the parties, in
a structured fashion, the information necessary to establish what might constitute a reasonable search and establish a sensible methodology with which to conduct the disclosure exercise.
Although not mandatory, it should probably be used as a matter of course in any event - even in instances where the EDQ is not exchanged with the opposing party. There is nothing in the EDQ that law firms should not discuss with their clients anyway as part of the disclosure process, and indeed failure to do so could be negligent. Given that the court may order its use where parties fail to agree the process in a case, much time and cost could be saved if the answers are to hand at the point it may be ordered.
Many e-disclosure questionnaires have been drafted over the years - some far too complex and technical and some so simple as to be useless. The current EDQ is pitched at the right level. It elicits just enough to allow parties and the court to establish what might constitute a reasonable and proportionate search and approach.
The PD does not introduce anything new, but it does state expressly (for the first time) the established principle that the duty to preserve arises at the point that litigation is contemplated.
As reinforced in Whitaker’s judgment in Goodale & Ors v Ministry of Justice & Ors (2009), the PD encourages parties to adopt a staged approach to disclosure, both in terms of search parameters and accessibility of source material.
The guidance the PD offers on how to carry out an efficient e-disclosure exercise should result in significant cost savings and is far preferable to a judge ordering parties to “go away and sort it out”.
This will perhaps be all the more important when Lord Justice Jackson’s disclosure recommendations are implemented. On the basis that the current PD is in place, Jackson LJ recommended in his costs report that there should be a menu of options for disclosure in each case, ranging from no disclosure to disclosure by request, standard disclosure and train of enquiry-style considerations.
Of course, it is perfectly open to the court to depart from standard disclosure and order any of the other options. The difference is that standard disclosure will be removed as the default. The parties and the court, then, will have to consider the appropriate level at an early stage.
So have we got it right with the PD and EDQ? Given discussions I have had, along with Whitaker and Chris Dale of the e-Disclosure Information Project, with key members of the judiciary in the US, Singapore, New Zealand and Australia, all of whom are either considering introducing or have already introduced something similar in their own jurisdictions, I think we have.
However, we should not rest on our laurels as there is still much work to be done and the technological and e-disclosure landscape is moving fast. Issues that form the next e-disclosure challenges could include what information is in a party’s possession or control in a cloud computing environment, and identifying and retrieving information from Facebook and Twitter. Watch this space.
Vince Neicho is litigation support manager at Allen & Overy