There is a great deal of interest being shown in electronic disclosure amongst UK lawyers at the moment. Some of the activity is reported in my post Containing the interest in the eDisclosure Practice Direction and ESI Questionnaire. That ended with the disappointing (see what moderate words I can use if I take a deep breath first and try) news that the Civil Procedure Rule Committee felt it necessary to refer some aspect of the draft Practice Direction and ESI Questionnaire to a sub-committee. We (that is, Master Whitaker’s Working Group who drafted these documents) have been assured that the substance of both documents will remain in the form endorsed by Lord Justice Jackson in his Final Report [Para 2.5 on page 366].

It seems to me that the move towards proper management of electronic disclosure is now inevitable, sub-committee or no sub-committee. I am fielding requests to go and talk to law firms. Page views on my blog, which averaged around 5,000 in the closing months of 2009 were at 7,000 in January and are heading for the same number in February. If the trigger is Jackson, the parts of which lie in our own hands are the education message and the backing for the Questionnaire which, remember, does not merely make you identify your own sources, but gives you an early look at those of your opponents. Clients like early looks at the scope of the task ahead.

Professor Dominic Regan www.dominicregan.co.uk has been everywhere, talking about various aspects of the Jackson Report, including disclosure (actually, Dominic has been everywhere on these subjects for eighteen years, making him one of the most respected commentators on the civil procedure rules and their practical application). I asked him for his view on what is likely to happen in the early stages of the post-Jackson era. he said:

The word of the moment from Jackson is momentum. Those who say it will never happen are deluding themselves.

Jackson has the support of the senior judiciary, evidenced by the fact that at the press launch he was flanked by the Lord Chief Justice and the Master of the Rolls. A journalist asked them if they agreed with the finding that the judiciary bore some responsibility for very high costs. Their response was “if that is what Rupert says it must be right”. How telling.

During March there are major meetings to consider costs changes, case management and re-writing protocols. Much can be done using existing case management powers. Legislation is not essential on all fronts.

The real pressure, I reckon, is less to do with rules, meetings and sub-committees and more to do with client pressures. Which firm, in the light of Lord Justice Jackson’s words about e-disclosure, is going to approach the subject with clients as if time stood still in 1999? The point is not that every case warrants electronic handling but that cases must be considered with this in mind. It is called management, and whilst Sir Rupert Jackson’s reiterated passages on judicial management have caught most attention, the primary duty of management falls on the lawyers. You do not need a sub-committee to tell you that.

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