Clive Freedman brings readers up to date on the new proposals for disclosure stemming from the Jackson Report and on the latest developments on the long-standing proposals for a new Practice Direction on e-disclosure
Lord Justice Jackson in his Final Report had little doubt about the importance of e-disclosure issues for future litigation or about the need for change in disclosure procedures. In Chapter 37 he made the following recommendations:
· E-disclosure as a topic should form a substantial part of (a) CPD for solicitors and barristers who will have to deal with e-disclosure in practice and (b) the training of judges who will have to deal with e-disclosure on the bench.
· In place of the current requirement for standard disclosure as the default, a new CPR r 31.5A should be drafted to require the court to consider the most appropriate process for disclosure at the first case management conference in (a) large commercial and similar claims and (b) any case where the costs of standard disclosure are likely to be disproportionate. Personal injury claims and clinical negligence claims should be excluded from the provisions of the new r 31.5A.
With regard to e-disclosure, Lord Justice Jackson referred to a draft e-disclosure Practice Direction submitted to the Civil Procedure Rule Committee by Senior Master Whitaker's Working Party (of which I was a member). This would require parties in appropriate cases to exchange answers to a questionnaire dealing with their electronically stored information. It was planned that the draft should be brought into effect in April 2010. Lord Justice Jackson endorsed the substance of the draft Practice Direction as being 'excellent' and as making appropriate provision for e-disclosure. On the assumption that it would be approved in substantially its present form by the Rule Committee, he made no recommendation for procedural reform in relation to e-disclosure.
Draft E-disclosure Practice Direction and Questionnaire
The draft e-disclosure Practice Direction made its third appearance on the agenda of the Rule Committee on 12 February 2010. Unfortunately it was not adopted. Instead, the Rule Committee decided that it should be considered further by a separate sub-committee of the Rule Committee.
The wording of the draft e-disclosure Practice Direction was refined over a period of more than a year by a Working Party which included experts in the field and which was led by Senior Master Whitaker. The questionnaire was circulated for comments to a number of firms and associations before it was finalised. The draft Practice Direction and questionnaire were strongly endorsed by Lord Justice Jackson. Even though the Practice Direction has not so far been adopted by the Rule Committee, the questionnaire is available for use by parties in cases in which it would be of assistance and they should certainly consider using it in appropriate cases without awaiting the new Practice Direction – some have already done so. Senior Master Whitaker directed the defendant to answer the questionnaire in Goodale v The Ministry of Justice (Opiate Dependent Prisoners Group Litigation)  EWHC B41 (QB) and he annexed a copy to his judgment (a copy of the Guidance Notes and Glossary prepared by the committee which produced the questionnaire is available to download from the panel opposite).
The intention is that the questionnaire should in due course be made available as a .pdf form similar to the forms used in the e-working project which has recently been introduced in the Commercial Court, TCC and Chancery Division.
One of the points which caused difficulty in the drafting of the e-disclosure Practice Direction is deciding which cases are cases in which the parties should be obliged to exchange answers to the questionnaire. On the one hand, it is desirable that there should be an obligation to exchange answers in all cases in which this would be likely to save time and costs. On the other hand, there should not be an obligation to exchange answers in relatively straightforward cases where answers to a detailed questionnaire are not needed. The difficulty lies in finding words which appropriately distinguish between these two situations.
One possibility is to adopt a numerical trigger. For example, the Practice Note dealing with disclosure of electronic documents in the Federal Court of Australia (available here) refers to cases in which 'a significant number (in most cases, 200 or more) of the documents relevant to the proceeding have been created or are stored in an electronic format'. The Working Party considered that a numerical trigger would be too arbitrary: such wording would be likely to include some cases where it was unnecessary to exchange answers to the questionnaire, whilst at the same time excluding some cases in which exchanging answers would be desirable.
In its proposals for wider change in the disclosure rules, the Jackson Report created a definition of a 'substantial case', namely:
'(a) a case before the Commercial Court or the Admiralty Court; or
(b) a case in which the total of the sums in issue exceeds £1 million; or
(c) a case in which the total value of any assets in issue exceeds £1 million; or
(d) a case agreed by the parties to be a substantial case; or
(e) a case marked, whether because of the nature or extent of the disclosure the case is likely to involve or otherwise, as a substantial case by the court at the point of allocation to the multi-track or at any other point.'
If this definition were adopted for e-disclosure, it would be likely to exclude the very cases in which a new procedure is most required, ie those cases in which a claim is made for (say) £500,000, but the parties fail to give sufficient consideration to ESI at an early stage.
The alternative is to adopt a more flexible requirement that the parties should exchange answers in cases where the court orders them to do so, or where it would be likely to assist them in their discussions regarding e-disclosure or would be likely to assist the court. At present the parties too often fail to recognise at an early stage cases in which electronic documents may be significant (eg Earles v Barclays Bank  EWHC 2500 (Mercantile)). This might well remain the cases if the parties are left to make up their own minds on whether exchanging answers to the questionnaire would be helpful or desirable, and the Case Management Conference may still take place without the parties' having given sufficient consideration to disclosure of ESI. This approach may nevertheless be the pragmatic solution for the first year of operation of the new e-disclosure Practice Direction.
Jackson Report Menu Option
Lord Justice Jackson's Final Report set out a draft Practice Direction dealing with disclosure generally. This would replace standard disclosure with the menu option in 'substantial cases'. Lord Justice Jackson decided to make no recommendation that that draft should be adopted, as there are inconsistencies between that draft and the draft e-disclosure Practice Direction produced by Senior Master Whitaker's Working Party.
The menu options are as follows:
'(a) an order dispensing with disclosure; or
(b) an order that a party disclose the documents on which it relies, and at the same time requests any specific disclosure it requires from any other party; or
(c) an order that (where practical) directs, on an issue by issue basis, the disclosure to be given by a party on the material issues in the case; or
(d) an order that a party give standard disclosure;
(e) an order that a party disclose any documents which it is reasonable to suppose may contain information which may (i) enable the party applying for disclosure either to advance his own case or to damage that of the party giving disclosure, or (ii) lead to a train of enquiry which has either of those consequences; or
(f) any other order in relation to disclosure that, having regard to the overriding objective, the court considers appropriate.'
The recommendation that standard disclosure should no longer be the default is welcomed. Standard disclosure is impractical in cases involving large amounts of ESI, and the need for a different approach in heavy cases was recognised in the Commercial Court Long Trials Report in December 2007.
The draft menu option Practice Direction would require each party in a substantial case to serve, not less than 14 days before the first Case Management Conference, a report which
'(a) describes in broad terms what documents exist or may exist that are or may be relevant to the matters in issue in the case;
(b) describes where and with whom those documents are or may be located (and in the case of electronic documents and metadata how the same are stored);
(c) estimates the broad range of costs that could be involved in giving standard disclosure in the case;
(d) states whether any and, if so which, of the directions under (7) below [ie the menu options listed above] are to be sought.'
The draft menu option Practice Direction suggests that a report should be served describing in 'broad terms' what documents exist. However a report in 'broad terms' is unlikely to be sufficiently detailed for the parties to have appropriate discussions before the Case Management Conference, to reveal controversial matters, to enable detailed proposals to be agreed for dealing with those controversial matters, or (if the parties fail to agree how e-disclosure should be managed) to enable the court to make directions tailored to the specific needs of each case. There is a risk that parties will at this stage just agree 'standard disclosure' (as that is what they are used to) and nothing more, without giving this sufficient consideration.
In many cases, service of the report 14 days before the first Case Management Conference is unlikely to allow sufficient time for the parties to have discussions and agree appropriate proposals for e-disclosure.
More Training Essential
Lord Justice Jackson recognised that there is a need for solicitors, barristers and judges to be better trained for dealing with e-disclosure, and he recommended that this should take place. This point had been stressed by the SCL in its submissions to the Costs Review.
Whatever forms of words are finally adopted, it is education of practitioners and judges in these areas that is critical to the success of any new procedure.
For further information about electronic disclosure in England and Wales, see www.edisclosure.uk.com.
Clive Freedman is a Barrister at 3 Verulam Buildings and an SCL Trustee