Predictions 2010: Tenth Post

December 21, 2009

The new eDisclosure Practice Direction and ESI Questionnaire will force solicitors to question their clients as to the sources of electronic information. Many will protest at the novelty of a requirement to find out pre-CMC what the scope of the evidence is. Clients, on the other hand, will appreciate their lawyers’ consequent ability to estimate costs as well as outcomes, not least because the obligation is reciprocal.

One consequence of HHJ Simon Brown’s judgment in {i}Earles v Barclays Bank{/i} will be closer attention to what opponents have said in their disclosure statements. Bland assertions that a search will be disproportionately expensive will be challenged and particularisation will be sought of broad statements about document destruction. The policy aim here is not wider disclosure but better explanations.

Another side-effect of the {i}Earles{/i} judgment will be a debate as to what the law of preservation and spoliation actually is in England and Wales. The focus will be on deciding at what point a party might reasonably have anticipated litigation.

Solicitors will begin to appreciate not only that the definition of ‘disclosable document’ in Rule 31.6 CPR is narrower than ‘relevant’ but that the whole exercise is qualified by the word ‘proportionate’. Since parties may agree to give no disclosure (so the range is between 0% and 100% of the disclosable documents) parties will start focusing earlier and co-operatively (aided by the ESIQ) on what disclosure is really necessary for the facts to be found and justice to be done.

Even civil servants will start to move from ‘we have no electronic documents here’ to an appreciation that the rules and quasi-commercial considerations apply to them as much to anyone else. The ‘lost in the photocopier’ excuse offered by Ofsted as it produced 2,000 pages in mid-trial will become a standard joke as parties probe deficiencies in their opponents’ disclosure – ‘I suppose you will expect His Lordship to believe that your clients lost these documents in the photocopier’, counsel will sneer.

Those who say ‘e-disclosure is too expensive’ will be challenged to back the assertion by opponents, clients or judges. The result will be an upsurge in calls to technology providers from lawyers seeking estimates. Many of those will be hoping for high numbers (and will weight their question with that hope in mind) to confirm their prejudices. Many will be pleasantly surprised by the answers, particularly when they start to calculate what the costs of any alternative approach will be.

The near future is not all about defensiveness and being forced to do things one would rather avoid. 2010 will be a year of opportunities for those willing to grab them. The new practice direction, new technology, new ways of doing the work (whether by outsourcing it, using technology or a combination of both) and new ways of funding it, will meet new sources of work as post-recession litigation, investigations and increased regulation start to bite.