The website of the Society for Computers & Law has two new articles about electronic disclosure.
One is by barrister Clive Freedman of 3 Verulam Buildings and is called Disclosure: the Proposed Rule Changes. It summarises succinctly the elements in Lord Justice Jackson’s Final Report relating to disclosure and to electronic disclosure – I make that distinction because the labels serve to separate the principles which apply to the scope of disclosure and the court’s role in managing disclosure (on the one hand) from the elements which relate specifically to the disclosure of electronic documents (on the other). In practice, since the vast majority of documents to be disclosed are electronic, this distinction may seem unimportant. Lord Justice Jackson, however, treated them under separate headings and, for the moment at least, discrimination between the “what” and the “how” is a useful one, although they are, of course, interlinked – the third question “how much?” introduces cost into the equation, as proportionality demands that it must.
Clive Freedman’s article traces the linkage between Lord Justice Jackson’s proposed Rule 31.5A (“the menu option”) and the draft practice direction. The latter, as readers will know, has now been referred to a subcommittee of the Civil Procedure Rule Committee. Clive Freedman who, like me, was on Senior Master Whitaker’s Working Party which drafted the practice direction, emphasises that the questionnaire is available for use by parties in cases in which it would be of assistance without waiting for the new practice direction. Master Whitaker’s judgment in Goodale v MoJ helpfully annexes a form of the questionnaire.
That is the subject of the second SCL article Disclosure: the ESI Questionnaire’s Debut which includes Master Whitaker’s observation that the disclosure of ESI “has to be undertaken in a way that makes it the least expensive and most proportionate exercise possible”.
Both articles are accompanied by some Guidance Notes and a Glossary to accompany the ESI Questionnaire.
Whilst on the subject of Clive Freedman, may I refer you to his extremely helpful website at which sets out succinctly the law and procedure applicable to electronic disclosure. It includes clear explanations of about things like metadata, keyword searches and backup tapes which (as some lawyers are surprised to discover) have their place in the rules and case law. Clive keeps this up to date — the very recent Goodale case is included in his summary.
Clive Freedman’s site is also the only one which comes ahead of mine on a Google search for “e-disclosure”. I have plans to correct that when my planned new web site reaches its new domain.