Where it appears e-disclosure will form a significant part of the disclosure obligation, the parties are already, by virtue of paragraph 10 of the Practice Direction 31B – Disclosure of Electronic Documents, invited to exchange the “Electronic Documents Questionnaire” (a fairly comprehensive hand-holding guide to the process of giving disclosure of electronic documents). If the Electronic Documents Questionnaire has been exchanged then it must be filed with the Disclosure Report.
Not less than 7 days before the first case management conference, the parties must seek to agree a proposal in relation to disclosure that meets the overriding objective. In a clear bid to try and ensure that parties cut to the chase rather than engage in potentially slow moving correspondence, the parties must try and agree the proposal on the telephone or at a meeting.
Any agreed proposal considered to be appropriate by the Court may be approved by the Court without a hearing and with further directions.
The menu options
The Court is now under new CPR 31.5(7) required actively to consider limiting disclosure to deal with the case justly. The menu of options covers the whole spectrum from the dramatic (an order dispensing with disclosure) to the ordinary (an order for standard disclosure) with inventive variants in-between. Furthermore the Court has a menu of issues upon which it might give directions at any point, including whether disclosure should take place in stages, and the scope of the search for electronic documents (e.g. defining the date ranges, the custodians and the data repositories).
One possible order, not specifically laid out in the “menu” but which is available under the “any other order” provision, is what Lord Justice Jackson has referred to as the “keys to the warehouse” approach where the other party is allowed controlled access to the documents of the disclosing party. This is something that clients, particularly claimants with “nothing to hide”, may find superficially attractive since it shifts the costs burden onto the searching party. However the implementation of such an order is fraught with potential problems depending on the nature of the data. For example, once control is surrendered how can a client feel sure that confidential information is not being extracted even though it is not relevant to the claim? Due to such practical difficulties, the “keys to the warehouse” orders will be rare.
Impact of the changes
New CPR 31.5 seems aimed as much at the judiciary as the parties themselves. Under the old rules, an imaginative judge faced with a major disclosure exercise could already dispense with or limit standard disclosure; and the way in which any limitation was imposed was not curtailed save only by the general need to comply with the overriding objective. Perhaps the idea is that judges will be more confident in taking radical steps when at least some of the steps are set out in black and white.
For the parties, the important change is that they will be forced to consider disclosure at the earliest opportunity. Some litigators (particularly those involved in e-disclosure) are already used to the idea that it is never too early to consider what disclosure will entail and what it might cost. For others, there is something novel and a little frightening in the change especially when the costs of the disclosure will feed into the cost budgeting required by the similarly timed cost management changes to CPR Part 3, and all against a background of a change to the overriding objective so that cases must be dealt with “justly and at proportionate cost”.
It will be a risky course of action to come up with a hastily prepared estimate for disclosure based on frantic discussions with the client days before the first CMC. If that estimate becomes enshrined in a cost management order then the recovery of costs may be problematic if the budget is exceeded.
The advice has to be to turn to disclosure as soon as possible and produce a comprehensive and thorough analysis of the size and scope of the task. A Court faced with clear evidence of reasonable and careful assessment of the disclosure requirements is surely likely to show more leeway than a Court faced with something with all the hallmarks of a last minute job.
The client will need to be heavily involved. Obtaining advice from lawyers with deep e-disclosure skills, from providers of e-disclosure software and outsourced document review should also be considered because e-disclosure is evolving rapidly.
Initially e-disclosure involved a similar process to that adopted when hard copy documents were reviewed. After the documents had been digested by whichever database system was selected, someone went through every document and decided whether it was relevant and privileged and whether it related to one or more issues.
Now there are technological advancements such as improved processes, user friendly review systems, stronger searching and a host of analytical tools to better investigate the sometimes unknown data collected; all of which may lead to increased control of costs.
Early Data Assessment involves assessing the data available for the case and becomes an important initial step. It aids not only the clinical selection of relevant data sources but is also a test bed for filtering strategies and statistics that will help estimate disclosure costs. It also provides early insight into the merits of the case. Using tools to analyse, search and investigate data can provide the information required both to complete each new process within the CPR and to do it efficiently and cost effectively.
Technology Assisted Review tools are available such as Intelligent Prioritisation and Categorisation, where the technology automatically pushes documents of greater relevance to the front of the review queue and recommends appropriate categories for them based on learning acquired from human reviewers.
The processes outlined above and the changes to the cost management and disclosure rules are aimed at achieving the same objective - keep costs proportionate and the disclosure process lean. Disclosure (and the need to understand the data out there) has in these new rules been catapulted to thefront of the litigation timetable. This makes sense both legally and commercially because only through knowledge of the documents can the parties, their lawyers and the judiciary feel confident that the costs of the case can be proportionately controlled.
James Morrey-Jones is a Discovery Services Consultant at Kroll Ontrack and Damian Murphy is an e-disclosure barrister at Enterprise Chambers.