But civil procedure rule changes may only help a little, writes Rupert White



From 1 December this year, electronically stored information will be recognised by the US civil courts as a distinct category of discovery, which we now confusingly call disclosure. But whether this will greatly affect UK companies being sued or taking action in the US remains to be seen.



Among proposed changes to the Federal Rules of Civil Procedure are amendments requiring parties to discuss any issues relevant to preserving discoverable information, and any issues related to disclosure or discovery of electronically stored information. This also means in what form information should be produced.



The changes are touted as codifying best practice and potentially an attempt to ward off the frighteningly high costs of e-disclosure. But word on the street, or at least at the International Legal Technology Association's conference in Orlando last week, was that the technology companies involved see no likelihood of going out of business any time soon, according to show visitor Nigel Murray, managing director of litigation support firm Trilantic.



'They're expecting the e-discovery market to grow five times in the next five years,' said Mr Murray, 'so they're not looking at great changes, shall we say.' This might be a reflection of how much more data will be recovered in future, and how much work will be required in big cases. 'There is a view that the changes will have a similar impact on the US civil law as Woolf had on the UK civil law,' said Mr Murray, 'and what Woolf managed to do was dramatically reduce the amount of litigation.'



But this is not to say people in law firms are all speaking from a position of great wisdom. 'There's a huge ignorance as to what the rules are going to bring among litigation support lawyers,' said Mr Murray. 'They haven't studied it, they don't know what the impacts are.'



Michael Taylor, legal consultant for e-discovery firm Kroll Ontrack, was phlegmatic about the impact, especially to firms with clients who might see action in the US: 'The actual change to the rules won't make a great deal of change to how things are done now, because the US legal profession has been doing this for several years.'



Also embedded in the changes is a proportionality rule - that e-disclosure can be avoided if the cost or burden of doing it is unreasonable. But, of course, this depends on defining terms. 'There's a difference in what is a reasonable cost between the US and the UK,' said Mr Taylor. 'My impression is the courts are more likely in the US to grant an order for discovery than they are here.'



A way round being forced to produce a huge amount of information might be to fall back on the Data Protection Act, said Mr Taylor. 'It's very rarely going to be proportionate to comply with all the US's disclosure demands,' he said. 'Is it reasonable to expect for your company to trawl through every single piece of paper to redact personal information?'