One of the most useful UK resources about electronic disclosure is Clive Freedman’s electronic disclosure wiki at www.eDisclosure.uk.com.

Clive Freedman is a barrister at 3 Verulam Buildings and is (as I am) a member of Senior Master Whitaker’s working party which produced the eDisclosure Practice Direction 31B and the Electronic Documents Questionnaire. It is he who shouldered the burden of translating our deliberations into drafts and who, with Master Whitaker himself, set out to ensure that the practical and technical inputs were made to fit within the formal and procedural requirements imposed by the conventional structure of the Rules.

Clive’s website provides links to the relevant rules and practice directions and other sources of relevant materials, and adds references to cases in the courts which deal with eDisclosure. If it is my role to provide the narrative, Clive provides the nuts and bolts.

Clive has recently added a new section to his website with the heading “Using a neutral third party to resolve or prevent disclosure disputes” in which he discusses how a neutral may be able to assist the parties, with a view to minimising the delay and expense which may arise where parties are unable to reach agreement.  It is relevant in this context to know that he is a Fellow of the Chartered Institute of Arbitrators and an experienced mediator of IT disputes.

His new section sets out the passage from Lord Justice Jackson’s Preliminary Report about the possibility of using what were referred to as ”disclosure assessors”. Such a person could, Lord Justice Jackson said, ”immerse himself/herself in the issues and the primary documents and identify which categories of documents on both sides truly merit disclosure” as well as dealing with other disputes relating to disclosure.

As Lord Justice Jackson’s Final Report says, this suggestion aroused strong views on both sides. I personally support the idea, partly as a remedy for the lack of specialist skills amongst case managing judiciary, and partly because of the US experience of Special Masters who perform an analogous function.

For the moment, anyway, there is no provision in the Rules for the role of disclosure assessor. Like so much else, however, there is no reason why parties should not appoint such a person by private agreement in an appropriate case, ”appropriate” generally implying that time and costs are to be saved by the joint instruction of a neutral person to stand between the parties, with an understanding of the Rules, the parties’ objectives and the techniques (a wider concept than mere technology) which might be used to cut down the disclosure burden.

It takes a particular type of skill to fulfil this role, and it is not one I seek for myself. Clive, however, does have the necessary experience, and is ready to use it to assist parties in minimising delay and expense.

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