No need to wait for the eDisclosure Practice Direction and Questionnaire – just get on with it

The decision (or, rather, the non-decision) of the Civil Procedure Rule Committee to send the e-Disclosure Practice Direction and EDisclosure Questionnaire off into the sidings of a sub-committee has been the equivalent of coming up behind a funeral cortège whilst driving to catch a train. You have to show respect, of course, but you can feel time and money dripping away as you clench the steering-wheel in frustration.

The delay will not stem the creation of electronic documents nor moderate the need of lawyers to manage those documents for litigation. The purpose of the Practice Direction and Questionnaire is to streamline that effort and that expenditure so that the time and money are spent on things which matter. The worst fear is that the Questionnaire will end up in some appendix as a ‘Guide to Best Practice’ or something equally wet. If the obligations to discuss sources of data have sat unused in the Practice Direction to Part 31 CPR for over five years, it seems unlikely that the addition of a best practice guide will do much to remind lawyers and judges of their obligations, still less actually help with the process, which is what the combination of the draft documents intends.

As I say, I have yet to work out how best to build on the interest in proper management of e-Disclosure in the interim. That existed even before Lord Justice Jackson emphasised the need for education, the value of software demonstrations and, specifically, the role of the questionnaire, and it will not go away during this further delay.

It is worth referring you to articles by two other people with long track-records of thoughtful writing on and around the court processes. Professor Dominic Regan, visiting professor of litigation at City University, London, and Lawrence Eastham, long time editor of the magazine and website of the Society for Computers & Law, each come at the subject from a slightly different angle – Dominic is a black-letter lawyer who has been speaking and writing about all aspects of the rules for some 18 years. Lawrence Eastham’s tenure at the SCL is of similar standing,and he inevitably comes at the subject from a technology and business efficiency viewpoint.

Dominic Regan’s article in the New Law Journal is called Implementing Jackson and, as I have already reported in my preview of that article, he is convinced that the Jackson reforms will march on, and quickly. The next step, he says, is implementation, not debate; Sir Rupert Jackson is in no mood to entertain challenges; the Ministry of Justice and Civil Justice Council are gearing up to implement recommendations. Although this optimistic message is not exactly consistent with the Rule Committee’s reaction to the first post-Jackson reform to come its way (see Jackson untroubled by delay to e-Disclosure Practice Direction, Dominic Regan’s analysis of case management generally makes it clear that much can happen without waiting for additions to the rules. He says this:

Case management powers under CPR 3.1, not used extensively to date, bestow tremendous latitude. The court can require estimates at any time, impose timetables and indeed make any other order so as to manage an action and so further the overriding objective.

It is worth looking a bit more closely at Rule 3.1 CPR, which makes it clear that the powers given in the rule are in addition to any powers given to the court by any of the rules or practice direction or by any other enactment or any powers it may otherwise have.  Rule 3.1(2) lists specific powers which are given to the court except where the rules provide otherwise. The interesting one is Rule 3.1(2)(m) which provides that the court may take any other step or make any other order for the purpose of managing the case and furthering the overriding objective.

The “tremendous latitude” to which Dominic refers is key to progress. Another way of looking at this is to observe (as I have done in every talk I have given about the rules) that if the court may make any order then parties may seek any order. It is not enough, in other words, to say that the judge failed to manage the case if the lawyers did not play their part – Rule 1.3 CPR says in terms that The parties are required to help the court to further the overriding objective. So far as eDisclosure is concerned, whilst the Practice Direction to Part 31 CPR needs beefing up in the manner which we have suggested, the existing obligations (and they are obligations, not options or mere statements of best practice) lie at the hands of any party who has ideas as to how the case should be managed. The object of the questionnaire is to give formal shape to that existing obligation. The exercise of the responsibilities may be lawyer-led but it should be judge-driven or, to put it another way, the neglect by one does not excuse the dereliction of duty by the other.

I remember a miserable description given to me a couple of years ago by a solicitor of her repeated attempts to try and persuade her local district judge to engage with the subject at case management conferences. What really angered her was the way he looked at his watch whilst ticking a pro-forma box for standard disclosure. One step up from that come judges (and I have heard of them over the years at every level in the courts) who feel that they have fulfilled their case management obligations by sending the parties away to agree a “protocol” (judges have been banned from using Latin in judgments; perhaps we could extend this to cover the use of Greek in case management).

You get none of that in the Mercantile Court in Birmingham which is the subject of Dominic Regan’s next paragraph. The editorial process has left that paragraph in a shape which looks inherently self-contradictory and it is worth pausing on it. The relevant sentence reads as follows:

His Honour Judge Simon Brown QC has attracted considerable praise running the Mercantile Court in Birmingham. When I was in Birmingham last week I was told that several claimants, troubled by the “Brown approach”, were now issuing anywhere but Birmingham.

I am sure that this happens. There are plenty of solicitors who, given a choice between a judge who will actively manage their cases and one who will merely tick boxes on a pro-forma order, will prefer the latter. If you can predict the response, then you can send the cheapest body in the office to CMCs because no one, judge or solicitors, is going to be very stretched by the matters which arise. This is not, however, to be confused with management. It is just like the old summonses for directions which I did when I was young, a pleasant excuse, I felt, to get out of the office and do nothing very demanding in front of a Master and yet have a nice block of time to put on the time-sheet.

This ability to choose any court whose judge’s expectations of you match your own cuts both ways. Judge Brown said this in an interview last year:

Since I began banging the electronic disclosure drum, I’ve actually had quite a number of cases that have been started in my court and I’ve asked “why are you in front of me? This doesn’t seem to be the usual case that comes in front of this court”. They said, “You are keen on electronic disclosure and we believe we are going to have problems with the other side, and we believe you will help us sort them out or make us sort them out”.

Judge Brown’s only fear, I suspect, is that those cases which have been “managed” by “tick-the-box” judges in other courts somehow end up in front of him at trial. The ideal is a docketing system under which, so far as is possible, judges manage their own cases. In those circumstances, Sir Rupert Jackson said at last year’s Birmingham costs management meeting, the judge should be “estopped from complaining” about the case preparation.

This talk of lawyers choosing judges whose attitude is congenial to them really emphasises the point which I make about parties making their own fate. Some lawyers may prefer an easy ride in front of a box-ticker but, of course, if they get an easy ride, then so do their opponents. Which approach, I wonder, does the client prefer? Which one is closest to the ideas set out by Lord Justice Jackson? The point is not that one judge orders electronic disclosure whilst the next one has never heard of it. The role of the judge is to consider what is appropriate for that case upon hearing informed lawyers who have complied with their pre-CMC obligations. Lord Justice Jackson’s “menu option” in his proposed Rule 31.5A includes the possibility that there be no order at all for disclosure. The point of Dominic Regan’s reference to Rule 3.1 is that the rules already allow such an outcome if that is what the judge thinks is right. Our draft PD is carefully drafted to make it clear that its burdens, such as they are, fall only where a corresponding benefit might be expected.

Laurence Eastham has been casting a jaundiced eye over the law technology business seemingly for ever. He will not, I think, object to my use of the expression “jaundiced eye”, save possibly to condemn it as a cliché. The earliest record in my archive of dealings with Laurence dates back to July 1995 when some litigation software which I had written had been runner-up for the 1995 SCL award. He sought an article “to tell readers about good solutions to the problems they encounter”. I cannot find the article which I wrote as a result, but I do have one from 1994, which emphasised the increasing role of judges in the management of cases. 16 years on, Dominic Regan can still find lawyers shopping around for judges who will not trouble them unduly on the subject.

Laurence Eastham’s article of 18 February is headed A Lack of Direction. I will leave you to read for yourself his elegant analogy between the role of the Rule Committee and that of a map and compass, together with his potted history of the long gestation of the proposed practice direction. I pick out one passage only. Laurence says:

It may be true, as suggested by Chris Dale … that the draft PD and questionnaire can act as a beacon showing best practice and that the absence of final endorsement should not prohibit those on the ground from adopting its practices while the sub-committee completes its task (whatever that may be). I cannot manage such a positive view.

I want to be precisely understood here. It is essential that we have the practice direction and questionnaire firmly in the rules so that neither lawyers nor judges can “overlook” them in deciding what is appropriate for the case. Until “the subcommittee completes its task (whatever that may be)”, as Laurence puts it, we have to settle for second-best, and it is very much second-best that these documents are used as mere guides to best practice.

The “positive view” which I can manage but Laurence Eastham cannot, turns on two things. One is Dominic Regan’s conviction (based in part on Sir Rupert Jackson’s calm assurance) that we will get there in the end with the Practice Direction and Questionnaire – in terms of my opening analogy, a stretch of open road will take us past the cortège and into the station. The other is the awareness of a pent-up demand by many lawyers to get on and give effect to Sir Rupert Jackson’s proposals as soon as possible. There are many cases to which all this is truly irrelevant; there are many lawyers for whom “forum-shopping” means finding an undemanding judge who will effectively conspire with them to ignore the more arduous aspects of case management. There are enough, however, who realise that the old ways are gone, that electronic documents exist and must be dealt with, and that there is work to be won by those who can show prospective clients that they will handle this necessary but low-value work in a cost-effective manner.

As Laurence Eastham says, the PD and Questionnaire have been drafted, edited, consulted upon, redrafted and fine-tuned. Lord Justice Jackson says that we must respect the will of the Rule Committee, and so, of course, we must. But we have spent 18 months on these drafts; I have spent 18 years getting to this point. Take a look, as Dominic suggests, at Rule 3.1 CPR, and re-read the Practice Direction to Part 31. Skim the section on Disclosure in Lord Justice Jackson’s Final Report (Chapter 37 from page 364). Whilst the Rule Committee has a final rub and a polish at our carefully-chosen words, why not just get on with it?

About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Case Management, Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Judges, Litigation, Litigation costs, Lord Justice Jackson. Bookmark the permalink.

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