Escalating costs, along with the practical and technical implications of dealing with mushrooming volumes of data, have forced a fundamental rethink of information disclosure.
At the heart of countless cases involving dispute resolution, few would call into question that electronic disclosure has an important role to play in ensuring justice is done, but this must be achieved in a manner proportionate to the cost involved.
As new data sources continue to emerge, the legal profession faces mounting challenges in carrying out e-Disclosure effectively, which according to Lord Justice Jackson, ‘relatively few solicitors and even fewer barristers really understand’.
Picking up the baton from Jackson LJ and in response to the subsequent Practice Direction 31B and new Civil Procedure Rules, the e-Disclosure guidance initiative by the Technology and Construction Solicitors’ Association (TeCSA), Technology & Construction Bar Association (TECBAR) and the Society of Computers and the Law (SCL), is set to bring much-needed clarity to the disclosure process.
The Technology and Construction Court (TCC) adopted the TeCSA/TECBAR/SCL e-Disclosure Protocol and accompanying guidance in January and six months on, what lessons have been learned so far? In particular, how can lawyers, clients, e-Disclosure specialists and courts work together to further enhance and streamline this process?
Good technology and good protocols, to allow the parties involved to come to an agreement on disclosure, are fundamental to meeting the expectations of the courts. The e-Disclosure Protocol pack is a significant step in the right direction and provides an excellent starting point for the disclosure strategy.
It sets out clearly what the TCC expects to see and what the parties will need to achieve, with its focus on making the process practical, proportionate and cost-effective, while recognising the potential scale of the disclosure exercise.
There is now a growing expectation that the decision by the TCC to adopt this framework could see other courts follow suit and embrace the same ‘best practice’ guidelines.
The courts have laid down a relatively broad definition of what encompasses ‘disclosure’, which is unlikely to change any time soon. As the data scope evolves, social media such as Facebook, LinkedIn, Twitter and chat are set to add to a long list of potentially disclosable information, which is likely to deter courts from becoming too prescriptive.
A key challenge that will remain, therefore, is where the line should be drawn and whether this broadly defined ‘information’ can be, potentially, helpful to the opposing side; potentially helpful; or adverse to their own case.
A rise in data volumes is already forcing a relaxation in the timelines involved. The original intention was to secure an agreement on disclosure within a month, which is now likely to be pushed towards a period of eight to 10 weeks. In reality, particularly in the Commercial Court, where the original pool of documents could run into tens of millions, a four-week timeframe would simply be unrealistic.
An extended period of time will allow an accurate data map to be developed, as recommended by the courts, which will outline where the data is stored and any particular issues that may surround this information.
However, this is by no means a carte blanche for a return to ‘death by disclosure’ and all parties must ensure they discuss electronic disclosure as early as possible.
There may be costs consequences if they fail to do so, as was made clear in the wasted cost order against the West African Gas Pipeline Company (WAPCo). Seen by many as a catalyst to e-Disclosure reform, the TCC made the order following the company’s failure to prepare a complete set of electronic disclosure.
The e-Disclosure Protocol pack, however, encourages the parties to discuss these issues at an early stage, and the TCC and other courts generally expect the parties to be armed with a very significant level of knowledge. In practical terms, this requires details of the proposed form and cost of disclosure to be discussed and agreed at the Case Management Conference.
A key lesson from the landmark WAPCo case was the failings in the de-duplication process. This led to judgments on identical documents being doubled up, with multiple reviewers sometimes making differing subjective judgements on the same documents resulting in inconsistent reviews and disclosure. Information disclosure has taken a positive step forward in the wake of WAPCo but there is no doubt the process can be further improved.
The Electronic Disclosure Reference Model (EDRM) has the support of TCC and other courts but the time has come to recognise that, as highlighted by Lord Justice Jackson, this process requires specialist expertise. The cost of failure is high and the key stages, from the very outset of this process, cannot be left to chance.
Too often we see disclosure decisions being made that may prejudice the outcome of a case, for example, by the indiscriminate culling of data or the use of a client’s in-house IT team to collect the data, opening the door for the other parties to challenge the integrity and objectivity of that process. The relatively low cost of instructing qualified experts to undertake this process, as recommended by the Protocol, certainly outweighs the risk of casting doubt on the strength of your factual and legal arguments in court.
The e-Disclosure Protocol is a significant step forward for practitioners in creating a framework that is capable of managing rapidly evolving information disclosure challenges. With the prospect of the initiative being extended to other parts of the judiciary, including the Commercial Courts, we are likely to see positive change in the way e-Disclosure can help shape the future of dispute resolution.
In the meantime, the reluctance to embrace new technologies to tackle a mounting volume and complexity of data must be put aside, to address the need to control costs, improve accuracy and cut turnaround times for parties and the courts.
Vijay Rathour is vice-president of Stroz Friedberg, an investigations, intelligence and risk management company