Reza Alexander of DLA Piper UK LLP is perhaps the most knowledgeable UK expert on the implications of the recent e-Disclosure amendments to the US court rules. I will point you in a moment to an article by him, but first a little background….
If you don’t understand the acronyms in the heading, you are probably on the wrong web site. The Civil Procedure Rules, or CPR, is the body of rules, practice directions and protocols which govern the conduct of cases in the High Court and County Courts of England and Wales. The Federal Rules of Civil Procedure, or FRCP, is the Federal equivalent in the US.
I have told this story before, but it bears repetition. I was at a dinner of litigation support experts in New York in January. The context was LegalTech where anyone from the US or UK with an interest in litigation support and e-Disclosure gathers every year. The hot topic was the FRCP amendments governing electronic Discovery which had come into effect a few weeks earlier.
Talking to my neighbour on one side, I became aware that the conversation on the other side was becoming a little heated. It remained polite, but the temperature and the volume were increasing, and my neighbour had not obviously drawn breath for five or six minutes. Someone had asked Jonathan Maas “What can you British learn from our new rules?”
Jonathan Maas is head of Litigation Technology at DLA Piper UK LLP, a firm which flies the legal technology flag on both sides of the Atlantic and around the world. He is also one of the prime movers in LiST, the Litigation Support Technology Group, which argues for greater use of technology in UK litigation and has backed its arguments with a draft Practice Direction and a draft Protocol. See my commentary on LiST’s work.
I summarise for the sake of brevity, but Jonathan’s reply was to the effect that the Practice Direction to Part 31 of the CPR, the UK equivalent to the FRCP amendments, had been in force for some time, and that it was a little premature to think of learning lessons from a mere babe of an amendment of eight weeks’ standing.
It was, I think, the form of the question which was at fault here, since Jonathan is one of the more rounded commentators on the FRCP and a predictor (and proponent) of a closer alignment in due course – the best of both sets of rules, evolving as suggested by experience on both sides of the Atlantic. DLA Piper is in a better position than most to study that evolution.
As one who argues for greater use of the Practice Direction to Part 31, I am keen to know how the FRCP amendments are working in practice. They are more mandatory than ours, both in their wording and their application, and therefore have potential for either encouragement or awful warnings for those of us who would see changes over here. The reality is that they will have both encouragement and warnings for us, and we can only benefit from leaving the Americans to it for a while, watching what happens and leaving the UK courts to flex gently the muscles which are given by the present rules in whatever way best meets the overriding objective.
So, what are the amendments to the FRCP and what do they have in store for us? I had intended to devote an article or two to this, but see little point when Reza Alexander has done it very well already. His article Where America leads, which was published in Strategic Risk in April 2007, can be found here.