There has been much interest in the draft eDisclosure Practice Direction and the Questionnaire which forms part of it. Lawyers and education providers keep asking for a sight of it. Lord Justice Jackson commended it. Rule-makers in other jurisdictions have been watching out for it. I aborted a Jackson-related podcast last week because we were so close to a decision on it. A lot of initiatives have been on hold waiting for it. Friday was the day of its third appearance on the Rule Committee agenda.
I have had to stockpile the mass of interesting US material which has come my way since LegalTech in order to focus on the domestic front. The very great interest which has been shown in the pending Practice Direction and ESI Questionnaire intensified as the day approached for the Civil Procedure Rule Committee’s third consideration of the documents which Senior Master Whitaker’s drafting group has been working on for nearly two years. I have fended off all requests for copies of it by referring to the rule that documents under consideration by the CPRC are not published until annexed to the minutes of the meeting at which they were discussed. That third meeting was held on Friday.
I went to Merrill Corporation’s party on Wednesday. It was held in the crypt of St Paul’s Cathedral and, like its predecessors, was attended by an impressive array of people from every corner of the litigation process — judges, solicitors, barristers and litigation support people. The pending PD was much discussed in the light of Lord Justice Jackson’s endorsement of it in his Final Report. That, by way of reminder, was expressed in the following terms:
In my view, the substance of this Practice Direction is excellent and it makes appropriate provision for e-disclosure. On the assumption that this Practice Direction will be approved in substantially its present form by the Rule Committee, I do not make any recommendation for procedural reform in relation to e-disclosure [Para 2.5 on page 366].
I spent most of my time at the party trying to recruit the ladies present to attend a meeting of Women in eDiscovery which I was due to address the following night on the subject of the Jackson Report. I also came across a litigation support manager not seen since we were on opposite sides of a big and hotly-fought e-Disclosure dispute some years ago — just the sort of thing, in fact, which the Practice Direction and Questionnaire are designed to resolve quickly and cheaply.
On Thursday, I was due to record a podcast on the disclosure sections of the Jackson report for CPDCast who get large audiences for their recordings. My plan to arrive early was disrupted by someone falling under a train – there is a metaphor in there somewhere but good taste prevents me from exploring it. I reached CPDCast eventually, did the sound checks and launched into my first section. As I did so, I realised that it was nonsense to continue — within 24 hours the CPRC would have dealt with the Practice Direction, and it was pointless to talk about a pending development in a recording intended to have a long shelf life. I aborted the recording and promised to come back on the first available date after the CPRC meeting. The point here is that the section of the Jackson Report which was the subject of my part of the podcast was so closely bound up with the Practice Direction by virtue of the words quoted above that the recording would be out of date before it had been edited.
I went from there to a well-attended meeting of Women in eDiscovery, for which Clyde & Co kindly provided the venue and Trilantic laid on food and drink. The speakers were HHJ Simon Brown QC (a Designated Mercantile Judge at Birmingham Civil Justice Centre), barrister Alison Potter of 4 Pump Court, and me. Simon Brown described the advances made in his own court towards controlling the costs of litigation whilst ensuring that the evidence needed for a just conclusion was available to the court in a proportionate manner. In particular, he described the steps taken towards encouraging the larger firms of Birmingham to co-operate – Birmingham is where Lord Justice Jackson launched his costs management trial, and progress is being made towards the co-operative approach to handling electronic documents which the rules, and specifically the Practice Direction to Part 31 CPR, require. It is important to realise that the Practice Direction has long imposed on parties a duty to discuss their electronic sources of documents, the scope of search and the proposed methods of exchange. The rules also impose on judges a duty of active management, both generally (by Rule 1.4 CPR) and specifically in relation to electronic disclosure by the reiterated references in the Practice Direction to the obligation to take difficulties or disputes to the judge at the first opportunity.
Alison Potter gave us a masterly survey of those parts of the Jackson Report most relevant to disclosure and case management. Lord Justice Jackson asked her (as his report acknowledges) to investigate the subject, which was promoted from being a subset of the section on disclosure to being a subject in its own right. She quoted the following from Chapter 37, Section 2, on page 365 of the Final Report.
E-disclosure is inevitable in many cases. The first point which needs to be made about e-disclosure is that it is inevitable in cases where the parties hold the relevant material electronically. For the parties to print all the material out and then exchange it in hard copy would often be impracticable. With all but the smallest volumes of material, that course would not be cost effective. Thus in cases where edisclosure is a consideration, it is often a practical necessity rather than an optional course.
Alison also referred to the recommendation on page 374 of the final report as to training which reads:
E-disclosure as a topic should form a substantial part of (a) CPD for solicitors and barristers who will have to deal with e-disclosure in practice and (b) the training of judges who will have to deal with e-disclosure on the bench.
One of her slides showed the six options for disclosure set out in Lord Justice Jackson’s proposed new Rule 31.5A (page 370 of the Final Report). It is known as the “menu option” and Para 2.3 on page 276 says of it that:
With no default position, at the first CMC the parties and the court would be forced to turn their mind to what would be the most appropriate process to adopt in those proceedings.
Alison concluded with a brief summary of other matters in the Final Report relevant to disclosure, including the costs management recommendations.
I took up the baton at that point. In case there is any doubt about this (and I am afraid there is, even amongst those charged with making and imposing the rules), the primary function of the proposed Practice Direction is costs management. It is not a free-standing function, but a component of case management and, as Lord Justice Jackson said (at paragraph 6.8 on page xxiii of his Final Report’s Executive Summary], “Case management can and should be an effective tool for costs management”, one to which “judges should take a more robust approach”.
Technology, I said, is merely servant to all of them. Anyone who simply shies at the subject of e-disclosure because they do not understand the technology is not merely missing the point but betraying the cause of costs management. There are a lot of them about, including many with power to influence a different approach.
I said that, whilst it might be expected that I would major on the use of technology, the starting point had to be what the CPR said about the obligations of the parties and the judge. I summarised the present rules, including the i) definition of standard disclosure in Rule 31.6 CPR which requires a party to disclose only documents which support or are adverse to the case of any party, ii) the duty of search in Rule 31.7 CPR , and iii) the obligations to discuss sources and to co-operate contained in the Practice Direction to Part 31 CPR. I laid particular emphasis on the overriding objective and the judicial duty of active management of cases (including the use of technology where appropriate) and the case management powers in Rule 3.1 CPR including the power to make any order “for the purpose of managing the case and furthering the overriding objective”.
I rattled through the cases — in Digicel (St. Lucia) Ltd & Ors v Cable & Wireless Plc & Ors  EWHC 2522 (Ch) (23 October 2008) the parties failed to discuss their sources and the judge at the CMC made an order for standard disclosure without making them apply their minds to the subject. The result was a dispute about the very things which the Practice Direction was designed to anticipate with (so it was said) £2 million spent on a disclosure exercise which had to be largely redone. Nichia Corp v Argos Ltd  EWCA Civ 741 (19 July 2007) is the source of the best explanation of the rationale for limiting disclosure to supportive and adverse documents and of the suggestion (quoted in Digicel) that it was not necessary to turn every stone in search of documents. Judge Brown’s judgment in Earles v Barclays Bank Plc  EWHC 2500 (Mercantile) (08 October 2009) showed lawyers paying the price for a failure to deal properly with electronic documents; the key point was not the technical breach of the rules but the costs actually wasted as a result of that failure. The case is important also for the careful analysis of the role of contemporaneous documents as evidence for a fact-finding judge.
I described the proposed new Practice Direction and Questionnaire due to be considered by the Rule Committee on the following day. The point of the Practice Direction was to firm up the existing (and I stressed “existing”) obligations to discuss sources, and the Questionnaire merely gave a formal context for the investigations as to a party’s sources which must necessarily underlie that obligation to discuss – the obligation is meaningless if the parties have not investigated what their sources are, evaluated their potential weight as evidence and established what costs would be incurred in handling them.
I returned to Lord Justice Jackson’s proposed Rule 31.5A, known as the “menu option” because it provided a wide range of possible approaches but made none of them the default. The options range from no disclosure to the widest possible disclosure at the judge’s discretion. A return to the pre-1999 relevance test, although not expressly referred to as one of the options, was carefully considered by Lord Justice Jackson who concluded (in contrast to what was said in Nichia) that although fewer documents were disclosed as a result of rule 31.6 CPR, the result was often greater expense [Para 3.1 of page 368].
The reality, I said, was that the parties and the judge already had both the duty and the scope to agree any of these options. The proposed new rule, the proposed Practice Direction and the Questionnaire (and particularly the latter) were important steps towards defining the obligations, but almost everything in them already lay at the hands of parties who comply with their obligations and judges who manage cases as the rules require. If a judge could, as Rule 3(1)(i) provides, make any order “for the purpose of managing the case and furthering the overriding objective” then the parties can seek any order, whether by agreement or upon failing to agree.
You are by now, I imagine, on the edge of your seats, wanting to know what happened at the third meeting at which the Rule Committee considered the Practice Direction and Questionnaire. A sub-committee of the CPRC was appointed to consider it.
This is the first of Lord Justice Jackson’s subjects to come up for consideration. What he said about it in his Final Report was clear and unequivocal and he expressly made no recommendation for procedural reform “[o]n the assumption that this practice direction will be approved in substantially its present form by the Rule Committee”. It addressed a significant contributor to the costs of litigation. It had been watered down to ensure that its provisions related only to those cases to which it was relevant, and to maximise the role of the judge in deciding whether it should apply to the case.
In the last year, Canada, Australia and Singapore have introduced reforms aimed at making the conduct of electronic discovery both cost-effective and efficient. We have the opportunity, with this proposed amendment to the rules and Lord Justice Jackson’s endorsement of it, to set the standards others with follow in this constantly-evolving area of practice – constant evolution being needed to keep pace with the changing problem to be solved.
You will have noticed my stress on two things throughout this post – the very great amount of interest shown by lawyers and others in the fate of the Practice Direction and Questionnaire, and the reiterated observation that the disclosure rules, the existing Practice Direction, the overriding objective and the powers of active management already give the parties and the judge the opportunity and, indeed, the obligation, to manage electronic disclosure proportionately and cost-effectively in the interests of justice.
There is an obvious conclusion to draw from this. Whilst I rather regret having deferred some initiatives whose impact would have been greater with the the Questionnaire in place, we now have not only a careful draft, but a great deal of interest in using it. The Questionnaire may be new, but its purpose – the identification of electronic sources of potentially-disclosable documents – merely formalises the existing obligation to discuss those sources. It will be good to see them implemented for the reasons given by Lord Justice Jackson in his discussion about them. That endorsement should suffice to give weight to the drafts, but you do not need it to comply with the rules as they stand, to make your opponents do the same and to persuade a judge to roll up his management sleeves.