It is assumed that users of this guide are well acquainted with the Civil Procedure Rules (CPR) which are the formal rules for this area within the UK. Of main interest to this guide is Practice Direction 31B – Disclosure of Electronic Documents, which took effect on the 1st October 2010 and comes with an Electronic Documents questionnaire. Further information on these topics can be found in Chapter 6. The point of mentioning these changes to the rules is that they prompted an increasing awareness amongst practitioners of law that electronic information existed and had to be disclosed (the real meaning of electronic disclosure, as opposed to arguing about the media used to hand over material).
The other key driver in this area has been Lord Justice Jackson’s review of Litigation Costs which was published in its final form in January 2010. The suggestions on how costs might be managed have mainly been implemented, with judicial training on costs management starting in January 2013, and the required legislation being enacted in April 2013. For the purpose of this Guide the key factor is that parties should arrive at the first Case Management Conference with a plan for eDisclosure that they have agreed with the other side. Fundamental to the changes is that Judges will have been trained to explore how the disclosure exercise will be carried out, and if the proposed approach uses technology in an appropriate manner. So the days of printing everything, or conducting a linear review with an army of legal staff, or arguing over arcane lists of broad keywords are numbered.
During 2019/20 there was a 2 year pilot of proposed changes to the Civil Procedure Rules for disclosure. The most straightforward and factual article about the proposals is on Simmons & Simmons’ Elexica site. It summarises the proposals and the main reasons for the changes, and has links to the draft rule. The pilot has been extended in 2021 and 2022 and has already been modified with more changes in the pipeline.
Lawyers need to “tool up” with technology and understand how to fully use the tools they have at their disposal. It is hoped the rest of this Guide will help them achieve this goal.
