Clearwell Systems has published on its website a White Paper which I co-wrote with them with the title The New Practice Direction and e-Disclosure: Best practices for Complying Proportionately (registration required). Its purpose is to set out recent developments in UK electronic disclosure and to show how Clearwell addresses the requirements which arise as a result.
I can give you the flavour of it by quoting part of its summary:
If you take together the outcome of the cases mentioned above, the requirements of the Practice Direction, and the model for case management provided by the Goodale decision, you see a requirement (and it is a requirement of competence and proportionality as well as a formal requirement of the rules) that parties to litigation assemble and exchange sufficient information before the case management conference to enable themselves, their opponents and the court to make the “proportionate and cost-effective” decisions needed to control electronic disclosure. A part of achieving this goal are the four main considerations laid out in the Practice Direction and summarised above.
Before you can make decisions about narrowing the scope of disclosure, you must know what you have got, be able to evaluate which of it is worth picking out for full review, and be equipped to debate value against cost with opponents. The next section of this paper considers how this might be done as a matter of best practice using Clearwell Systems’ software.
There is no point in pretending that electronic disclosure is an easy subject to grasp from scratch, and there are a finite number of ways in which one can describe what is actually involved. I approach this in two ways when drafting these papers – I ask the company concerned, in this case Clearwell, to do the outline, which simultaneously ties it in with their strategic approach and injects some variety into the approach. Secondly, I like if relevant (and as we have done in this case) to include some screen-shots to illustrate what might otherwise be incomprehensible expressions.
The core elements are easily grasped: in the one hand, there is a large volume of electronic documents which a) contain the evidence, b) represent a major component of cost and c) involve certain formal duties; in the other hand, you have some rules, a new Practice Direction and some cases, particularly, as regards case management, Goodale v The Ministry of Justice. To manage the one handful in compliance with the other, you may need some of the technology which has been designed for the purpose. You need to know what it can do, what it will cost and what it can save you in terms of time, expense and egg on face. To do that, you need to look at a few web sites and then to make contact with one or more of those who, like Clearwell, supply the relevant applications.
I am, as always, happy to answer questions relating to the matters covered in this paper. Clearwell’s contact details are on the last page of the paper.