New commercial court recommendations and a project in Birmingham point to a big push for E-Disclosure. Now law firms of all sizes will have to get used to it, says Chris Dale


Solicitors handling litigation will increasingly find a new rigour being applied to their disclosure of electronic documents. They will be questioned by the courts at case management conferences (CMCs) about electronic sources – particularly email – that have hitherto been tacitly ignored. If they have not already discussed their electronic sources with their opponents, they will be made to do so.



At the same time, they will be reminded that the test for a disclosable document is a narrow one. They will be expected to focus on the key issues at an early stage and may find that disclosure orders are limited to those issues. As a result, they will have to be more selective about the documents put into play, while nevertheless complying with strict obligations as to what is disclosable.



No new rules are required to impose this. Part 31 of the Civil Procedure Rules (CPR), the practice direction to part 31, and the court’s discretionary and general management powers require this already. What is different is that the courts are beginning to make use of their powers.



This will require a different approach to disclosure and will be a serious challenge to those who handle document-heavy cases. Not least are the professional and ethical considerations at two levels. One is a risk-management matter: can firms properly engage in document-heavy litigation if they are not equipped to handle electronic disclosure? The other is to do with professional standards: what is the proper test of reasonableness when the volume of potentially disclosable documents outstrips one’s ability to read all of them economically (that is, proportionately to the value of the claim)?



In many cases, it will not be possible to comply properly and efficiently with the requirements without technology.



There is public concern that litigation has become too expensive for any but the richest. The BCCI and Equitable Life cases attracted the most attention, but it is not just in big cases in the Commercial Court that the time and costs of disclosure are a problem.



Most commercial agreements are now arrived at by email and most business is conducted in documents that never get printed. A ‘document’ in disclosure terms means ‘anything in which information of any description is recorded’ [part 31.4 of the CPR]. That goes well beyond the conventional definition of a document and applies more widely than dealings between commercial parties. For example, the entries in a local authority’s housing database, or its records of pavement accident claims are all ‘documents’.



The new Commercial Court Recommendations, which took effect on 1 February, require a ‘surgical’ approach to disclosure and a tight focus on the issues.



The same principles apply pro rata to any case in any court that involves any large quantity of documents.



I have been working with His Honour Judge Simon Brown QC, a Designated Mercantile Judge at the Birmingham Civil Justice Centre, to see how the existing rules and powers can be applied to reducing the expense of disclosure.



We had a training session in Birmingham last November at which we brought the problems, solutions and rules together, with 14 judges whose responsibilities include case management. The upshot is that parties are being made to come to CMCs equipped to agree or to argue as to the proportionate scope of disclosure.



The result of this earlier focus may be the conclusion that there are no serious disclosure implications. Without it, however, the court cannot decide what is proportionate. The primary aim is the exchange of information, both between the parties and between the parties and the court to enable the court to manage cases efficiently.



The goal is not more disclosure but better disclosure – not the burden of producing everything but the benefits of producing only what is needed to try the issues justly.



The CPR has a comprehensive code for handling disclosure, and when the court’s management and discretionary powers are added to the parties’ express duties, there is scope to fine-tune the scope and cost of disclosure to fit the circumstances.



For a start, the scope of standard disclosure is narrower than one thinks. The CPR did away with the old – and very wide – test of ‘relevance’ and replaced it with a narrower one: a party must disclose only the documents on which he relies, which adversely affect his own case or which support or adversely affect another party’s case (part 31.6 of the CPR).



Next, the duty of search is qualified by factors that match those which define the overriding objective – the search must be a reasonable one having regard to the number of documents involved, the nature and complexity of the proceedings, the ease and expense of retrieval and the significance of any document likely to be found (part 31.7 of the CPR).



Electronic documents are covered by a practice direction to part 31 that expressly extends the definition of ‘document’ to electronic documents (para 2A.1) and reiterates the reasonableness provisions of part 31.7 of the CPR as to the scope of the search (para 2).



Most importantly, it requires (para 2A.2) that parties should discuss any issues that may arise regarding electronic documents and refer any difficulty or disagreement to a judge for directions at the earliest practical date, if possible at the first CMC.





Inevitable shift

It seems reasonable that lawyers should know by the CMC what electronic sources their clients possess and what the other side has. It seems reasonable also that they should have a good idea of what it will cost to handle the different sources, and what the relationship is between the likely evidential quality of any source and the cost of getting at it.



A court charged with management of a case – and considering the use of court time as well as the parties’ own resources – needs this information before making or agreeing to an order for disclosure. It follows that the judge needs to have a good understanding of what is involved, including the costs, in handling such documents. The responsibility for giving this to the court lies with the parties.



Armed with this information, the courts can make orders for disclosure that are proportionate to the case and which concentrate on the documents which will add most to the fact-finding.



The Law Society is interested at several levels, not least members’ concerns that litigation has fallen off because of the expense. That has business implications, but it also raises questions of justice – it is part of the function of the state to provide a forum in which people and businesses can efficiently resolve their disputes.



The Law Society has an important role to play in helping practitioners with education as to the relevant standards of professional conduct. It also has an interest on its members’ behalf to help them promote their litigation services.



It is taking an active role in the training and education of practitioners and recently organised a meeting of members in Birmingham at which Judge Brown and I set out the requirements – and the benefits – of compliance with the rules. The meeting was heavily over-subscribed and a further one is being arranged. More formal training sessions are planned.



Consideration is being given to the professional and ethical matters referred to above, which may warrant a practice note. I have offered to work with the Law Society on this.



Disclosure is central to the way we conduct litigation, it is electronic whether we like it or not, and those who cannot handle it economically will not be able to undertake litigation work of any substance.



But I prefer to look at this more positively. There is work to be won, particularly as the economic downturn bites, by those equipped to handle it. This involves more than just coping with ever-larger volumes of disclosure. It requires early and informed decisions as to what matters, the ability to identify them, and the tactical skills to make sure that you have the upper hand. The clients are coming to expect this. The rules, and now increasingly the judges, require it.



Chris Dale is a solicitor and e-disclosure consultant.



www.chrisdalelawyersupport.co.uk/edisclosureproject.htm