Its theme may be deduced from the title. Those responsible for drafting the new disclosure rule referred expressly to past judicial failures as a reason for beefing up disclosure obligations. The new rule has been accompanied by a determined attempt to make judges play their part in reducing the expense of disclosure. If there are few published judgments as yet, anecdote suggests that the judges are doing just that.
Integreon’s Vince Neicho has written an article called Innovation, destruction and frustration: breaking the vicious cycle, a follow-up to an earlier article which I wrote about here.
Vince Neicho begins by identifying some of the reasons why lawyers are willing to change the way they work. It is, he says, because the court requires it, because the client requires it, or because the competition is already doing it.
Our discussion on Wednesday in Bristol will cover all these points but will focus particularly on the demands of the court. My own part in it will cover the fact that, however drastic the new rule may appear to some, it is in fact a logical culmination of a series of developments going back to 1999. Rule changes since then have focused on the need to prepare in time, the obligation to discuss proposals with opponents, the need to be proportionate, and the need to involve the court by explaining what is proposed and being in a position to argue for one course rather than another.
Although previous rules imposed ever-tighter obligations on judges, there is now no avoiding their duties. In consequence, there is no opportunity for the parties to duck their obligations.
Previous rule changes were rather wet about the obligation to use technology, mainly (in my own experience) because the Civil Procedure Rule committee didn’t understand, and didn’t want to understand, the benefits of technology. The present rule leaves everyone – lawyers, clients and judges – in no doubt that they must show that they have considered the use of technology and must effectively explain why they have not done so.
Vince Neicho’s article goes further. Technology is not just a burden which we must take up with a sigh because the rules require it, but a positive enhancement to the way we work. He says this:
Today’s technology is feature-rich and awe-inspiring. Tomorrow’s technology will be even better and, given the likely pace of innovation, the position in just a few years’ time is hard to even imagine. Depending on your viewpoint, that’s either scary or exciting.
Our talk in Bristol will include a demonstration aimed at showing this, as well as fitting technology into the overall process expected of those giving and receiving disclosure.