Ed Crosse of Simmons & Simmons is one of the members of the working party which drafted the draft eDisclosure rule now being piloted. At Relativity Fest in London in May, he gave a lively interview on stage with David Horrigan of Relativity. Afterwards, I took the opportunity to ask him some questions of my own.
Appropriately for a technology conference, I focused first on those parts of the new rule which involved the use of technology. The Disclosure Review Document seems central to how the new rule will operate. I asked Ed Crosse how that was going.
Ed Crosse said that it was too early for more than anecdote about the operation of the DRD, but it had been road-tested by various firms during the consultation. They were asked to apply it to their existing cases and to report on how it worked for them.
The chief message from the consultation was that the new rule should not overcomplicate matters before the first case management conference, and that is reflected in the pilot version. It looks daunting at first sight, I suggested, but it is well broken down when you focus on it.
Another message which came out of the consultation was that people wanted a lot of guidance, and that is reflected in the version now in use. It is important to stress, Ed Crosse said, that this is a document which you can adapt and modify as you go. The DRD may be a big document, but the things that you actually have to do are not that complicated, and users should not be intimidated by it.
There is more to the new rule than technology. The first thing you have to complete is the section on the issues. The discussion about issues, Ed Crosse said, provides the framework for everything else which follows. Issues have always been important, of course, but discussion about them was usually left until too late in the process.
I suggested that there were many, perhaps including me, who thought that it was necessary to burn down the whole of the Civil Procedure Rules and start again, with cooperation and proportionality at the forefront. The disclosure working party had the advantage of a clean slate, uninhibited by the way things had always been (something much envied by those of us who were involved in the drafting of Practice Direction 31B). Is the new rule going to last?
Ed Crosse said that we are definitely not going back to Part 31 as it was. Parts of the new rule will change as a result of the pilot – that, of course, is part of the purpose of pilots – but there will be no going back.