Over-estimating both costs and risks in the eDisclosure Practice Direction

There is a general sense that the eDisclosure Practice Direction has broad acceptance amongst lawyers – those who have read it before commenting on it, anyway. It is not just another CPR burden, nor is it something to fear – whatever you may hear from scaremongers with an interest in making it seem so.

I do not need to declare my interest in the success of the eDisclosure Practice Direction and its Electronic Documents Questionnaire. I helped draft it and have advocated its principles – of informed co-operation as a pre-requisite for proportionate disclosure – for years. It is good then to report that the initial reactions from lawyers seem to be favourable, even amongst those who accept that there are challenges. Most recognise that the challenges derive from the existence of the electronic documents, not from the measures being taken to control them.

We need to know, in due course, how it works out in practice. Meanwhile, it is worth drawing attention to two wholly predictable reactions which emerged within a few days of publication. The first is properly the subject of debate, though that debate will be more valuable when the proponents on each side have some experience of working with the PD, or have at least run their eyes down its main provisions. The second may appear a matter of nuance, but it is a nuance which matters. The common element is an interest in making the implications of the PD sound more alarming than they are.

I am referring to:

  • The exaggeration by some lawyers of the new burdens allegedly imposed by compliance with the E-disclosure obligations in the rules
  • A similar exaggeration by some technology providers of the same burdens, shading the useful “we can help” into the less useful “you have to involve us to do the job properly”.

Whether the dominant motive is the overriding objective or increasing your profits (and both are perfectly respectable drivers) these exaggerated reactions turn the end user (the lawyers from the perspective of the technology provider and the clients who can choose not to litigate if the system seems inimical to cost-effective litigation) against the whole subject. Let’s debate this by all means, but let’s start by looking at what the obligations actually add up to. Our sources are the documents themselves, the eDisclosure Practice Direction and the Electronic Documents Questionnaire.

The alleged burden of compliance with the rules

It was always likely that we would see law firm complaints about the extra burden imposed by the e-Disclosure Practice Direction and, specifically, by the Electronic Documents Questionnaire. The general form of the complaint is that there is already too much pre-issue and pre-trial paperwork and that the questionnaire merely adds to the pile. You cannot simply dismiss such objections – at least, I cannot, since I am in the camp which believes that much of the burden imposed by the 1999 CPR is unnecessary and wasteful. I see it as derived from the conviction, so very prevalent at the time, that bureaucracy is a useful end in itself, and from the idea that the court is a kind of settlement social worker rather than an efficient forum for disputes. You will find several articles to that effect on this site.

So, one must take seriously those who complain that the Questionnaire imposes burden without benefit – I distinguish this thoughtful group from those who will whinge about any change and those whose knees jerk faster than their brains can.  Is there in fact any great burden derived from the questionnaire, as opposed to the existence of disclosable electronic documents?

It seems probable to me that many objectors, even those in the “thoughtful” camp, have not focused on the deliberately limited circumstances in which parties will be required to complete the Electronic Documents Questionnaire. For a start, the entire practice direction applies only to multi-track cases [Para 3]. The questionnaire first appears in the PD merely as a suggestion :

In some cases the parties may find it helpful to exchange the Electronic Documents Questionnaire in order to provide information to each other in relation to the scope, extent and most suitable format for disclosure of Electronic Documents in the proceedings [Para 10].

So, no need to assume any burden here, unless an analysis of the benefits suggests that time and costs might be saved by exchange of questionnaires. There will be some, I think, who will find it a novel idea to weigh the burdens against the benefits (or the value of sources against the cost of extracting them, if you prefer), though that is what the rules have long required.

The questionnaire next turns up in circumstances where it appears that the parties “have been unable to reach agreement in relation to the disclosure of Electronic Documents and that no agreement is likely”, when the court will “consider making an order that the parties must complete and exchange all or any part of the Electronic Documents Questionnaire” [Para 15].

So there is nothing automatic there either; if you cannot reach agreement, then the court must be involved. If the court is to make decisions, it is not asking too much that you provide some information in a structured form to help the judge reach a proportionate decision. Is it? Paragraph 15 does not say “the parties must…” or even “the court will order…”, merely that “the court will consider making an order”, which may be for completion of only part of the questionnaire. Perhaps you would rather the judge took a stab in the dark. Or perhaps he might like to wade through the fat bundles of correspondence which you have built up on each side.

The last context in which the Questionnaire might be used is where  “the court considers that the parties’ agreement in relation to the disclosure of Electronic Documents is inappropriate or insufficient” [Para 18], when again the court will “consider” ordering completion of all or part of the Questionnaire. One way of avoiding that is to learn how to persuade opponents towards proportionate agreements which are appropriate and sufficient.

It will be clear from what I have said above that the Questionnaire is only likely to be relevant where there are enough electronic documents to worry about. There is a set of skills needed here, which includes the ability to form a judgement as to what you need to know to meet your usual obligations as to disclosure (and by “usual”, I mean those you were brought up to do before electronic documents existed, not anything new).

Those nervous of the Statement of Truth may care to ask themselves why. The Guidance Notes allow partial answers to be given and expanded later, so you can properly provide such information as is available at the time. If you are unsure about any of the information in it, you are presumably equally doubtful about the Disclosure Statement, whose veracity depends on having the same information.

An excellent article by Joanna Goodman on the Commercial Dispute Resolution site  (login required), includes this:

Will the new rules change the way litigators approach e-disclosure? According to James Farrell, a litigation and arbitration partner at Herbert Smith, it will not make a large difference to the handling of complex commercial cases.

“For sophisticated practices such as ours, it represents a helpful codification of practice that we will integrate with our in-house checklists and procedures,” says Farrell.

Well, you may say, what is that to do with my practice? I do not handle “complex commercial cases” – they all go to Herbert Smith and its peers.  There are two points here: one is that cases do not have to be complex to involve large quantities of electronic documents, and disclosure is a fundamental duty in all litigation;  the other is that the advantages of mere size count for less when you do not need large teams to sift through paper.  You may not have the “in-house checklists and procedures” which Herbert Smith has, but you ought at least to know what you would do if a case came your way which involved large volumes of electronic documents.

Providers exaggerating the problem in order to sell a solution

In that context, the Electronic Documents Questionnaire is not the problem – it is the documents which are the problem. The Questionnaire is part of the solution, either as a voluntary matter or because the court so decides.  You may need some help from someone who can deal with the issues faster and more cheaply than you can and there is, as I say often, a competitive marketplace in which you can find such help.

For that you may need a relationship with two or more potential suppliers of litigation support services.  The key words here are “may”, “relationship”, “two or more” and “potential”. As a rough rule of thumb, if you are approached by someone whose marketing materials include the word “must” in this context, or which otherwise imply that your professional fate depends on commissioning an immediate forensic collection from all your client’s systems just to answer the Questionnaire, then you may want to approach someone else.

I very much want to see greater use made of the technology which is now available for the proportionate management of electronic disclosure; the eDisclosure Practice Direction requires in terms that “technology should be used in order to ensure that document management activities are undertaken efficiently and effectively” [Para 6(2)]. The route to that, however, does not lie in spooking lawyers into hasty over-reaction. I put it this way in a recent article for InfoRiskAwareness called UK e-disclosure risks are calculable and containable:

The risk lies in not being equipped to assess the risk or to make proportionate decisions about the balance between cost and evidential value.

Most providers will, I hope, approach you on this basis.  For sure, the Practice Direction is an opportunity for lawyers to shine where they might otherwise falter, and is an opportunity for technology providers to convince lawyers that their services will be helpful to their clients. It is more than an incremental step towards electronic document-handling, and must be taken seriously, but it is not a Millennium Bug scenario.

It is equally not a major new pre-trial burden, or just another bit of tiresome CPR procedure. If your cases involve any appreciable volumes of electronic documents, you will need to know about the sources anyway. Your motivation as a lawyer will not primarily be the Practice Direction, but the recent eDisclosure cases. It might also be the opportunity to bid for new work.

Navigating unknown territory

It is worth remembering this. Outside the very biggest firms and the Commercial Court, this is terra incognita to most – to judges as well as those who appear before them. Old maps used to say ‘Here be dragons’ when no-one was sure what lay beyond, based on the assumption that the unknown was inevitably fearsome.  We do not know how the PD and Questionnaire will bed down. Much turns on judges using their discretion – and that reiterated phrase “the court will consider making an order” is an invitation to the use of informed discretion. They will have to decide between (at the extremes) parties who seek to use the PD aggressively as a tactical weapon and those who ignore both it and the electronic documents which are its subject.

We have here an opportunity to evolve a settled way of doing things in which discretion plays a much larger role than prescription. There are indeed dragons out there, as a quick skim of some of those judgments will show. The adverse outcomes which you will find there may have their formal roots in some breach of the rules, but the penalties reflect conduct which would be punishable anyway on first principles. The PD merely codifies, for appropriate cases, obligations which exist anyway. There is a legitimate debate to be had about its application to any particular case, but that is not a reason to condemn the principle. Your analysis of risk against cost may well result in the engagement of a technology provider to help identify maximum information at minimum cost, and there are plenty of good ones to choose from. It is easy to over-estimate the costs of doing that if you do not actually ask them what the costs will be; it is equally easy to be spooked into over-estimating the risks. In most cases, you need merely a guide to the safest route, not a dragon-killer.

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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, CPR, Disclosure Statement, Discovery, E-Discovery Suppliers, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Litigation Support, Part 31 CPR. Bookmark the permalink.

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