November 1, 2004

The most cursory flip through this issue will reveal that it devotes many of its pages to disclosure of electronic documents. Not only do we have Terry Harrison’s short article and a lengthy account of the recent report of the Commercial Court Working Party chaired by Mr Justice Cresswell but the article by His Honour Peter Bowsher QC also refers to some related issues and Alex Charlton’s views on case management hearings for IT disputes addresses the documents problem. Recently, and to my great satisfaction, the SCL Web site has also been the lead publisher of the various drafts of LiST’s draft Practice Direction, the most recent of which sought comments by 22 October; that Practice Direction has a great deal to say about disclosure and, if adopted, will be the main influence on the mechanics of electronic disclosure. Electronic document management has been described of late as “boring” and that is a sure sign that is about to be widely adopted – and one of its selling points is that it enables users to control what is retained and what is disposed of (even if its main selling point remains the prevalence of the desperate questions: “where is it?” and “is that the latest version?”) often by reference to future legal liability.

In short, it is safe to say that the disclosure of electronic documents is a hot topic. It is a relief to me that real experts in this field are looking to make progress in the preparation of protocols and PDs and I am concerned only with three matters.

First, it is a difficult area and of course it would be nice to get everything right but we may already have reached the stage where it would be better to implement the imperfect than delay any longer. The significance of electronic disclosure is increasing at a phenomenal rate and solutions are needed now, even partial solutions.

Secondly, I hope that all concerned will not forget that while these issues have always tended to be seen as matters affecting “big cases” that is probably not true now, and is certainly not going to be true in a few years time. Consumers will be arguing about what they really said in e-mails when buying novelty socks online just as viciously as a Microsoft lawyer dealing with the EU Commission. The need for procedures which produce reliable information will apply in cases where the idea of sending in a forensic expert is risible.

Finally, I shake in trepidation whenever it is suggested that the parties to litigation should sort these things out by agreement as if that was a reason not to specify requirements, duties and specific obligations. Of course they should. And sometimes they will. But any failure to prescribe will be used by some to delay the progress of a case against them, to create arguments where no argument need be had and to bamboozle the unwary – I wish I could say that such conduct would be the preserve of an unscrupulous few but the main run of commercial litigators did not enter the field with a view to being loved. The reality is that paper disclosure is subject to close and detailed prescription because every conceivable ruse has been used and is the subject of statutory rules or case-law guidance. That is not true for electronic disclosure. My appeal to all concerned is to let the parties agree to depart from any rule they like but to produce basic rules which cover every situation they can conceive of – eliminating dodge room and even the merest wiggle room.

Icing on the BAILII Cake?

I am sure you have already sent off your “birthday” donation to BAILII, whether you are able to attend its 5th Anniversary celebration or not. If you have not, do it now – financial support is still needed and SCL members have a vested interest in BAILII’s continued success. It is worth reflecting, and a great compliment to the service, that I now get irritated when things are not there rather than marvelling that they are. Congratulations to all concerned and Happy Birthday.

Wouldn’t it be nice if, as Lord Justice Brooke blows out of the candles, Joe Ury were able to unwrap the present of the Statute Law Database and all the resources need to integrate it with the cases and existing materials? Despite the fact that I now associate access to the SLD with the tattoo of MUG on my anatomy, I live in hope.