• > eDisclosure Services
• > CaseMap
• > Resources
• > Current Awareness
• Updates
• > Summer 05 Update
• Articles
• > New PD31 from 1 October
• > A Transatlantic Approach to Electronic Data
• > E-disclosure: self-help
• Links
• > click here for links
• > Contact Us

Summer 05 Update

 

Electronic documents and email communication have played an increasing part in day to day business over the last decade. It should be no surprise therefore that electronic documents now fall to be dealt with as evidence in the dispute resolution process in England and Wales — litigators need to be as up to date as their clients’ business practices if they are to thrive in the e-disclosure era.

 

Disclosure Duties

 

CPR
Though there was never really any doubt given the wide definitions of “Document” and “Copy” in CPR part 31, it is now clear that the same disclosure duties apply to electronic documents as apply to paper:

• Research by the Commercial Litigators’ Forum and the Cresswell Committee informed the amendment to the Commercial Court Guide in November 2004.
• The Civil Court is actively considering draft practice directions on e-disclosure; those deliberations will no doubt be influenced by the latest draft LiST practice direction (3 March 2005) for The Use of Technology in Civil Proceedings.

 

Best Practice
Notwithstanding the clear duty under CPR 31, it is difficult to see how solicitors may fulfil their duty to their clients if they have not considered the relevance of the mass of documentation that is likely to sit on their clients’ hard drives, servers and other storage media. Awareness and analysis of the evidence is fundamental, of course, to the legal and tactical advice given and it is surely prudent to find that evidence sooner rather than leave one’s opponent to discover it later. The difficulties of achieving pre-action settlements without key disclosure will also militate in favour of considering electronic documentation early in the process. Indeed, prescient solicitors will be advising clients about e-disclosure well before a dispute arises. Companies need to put pro-active electronic document management processes and preservation policies in place because:

• Failure to manage data as part of normal business practices is likely to make any disclosure process far more costly and increase the business interruption suffered if a dispute does arise.
• Failure to preserve electronic documentation once the duty to preserve arises can only increase the risk of high profile U.S.-style sanctions. (See www.lexisnexis.com/applieddiscovery for U.S. e-discovery caselaw and expert commentary.)

 

Competitive Advantage

 

Awareness of the business impact of e-disclosure for clients and the tools that are available to deliver tactical and cost benefits to them will form an increasingly vital part of the differentiation between one law firm’s dispute resolution service and that of another.

 

Cost
Reviewing electronic documents through bespoke e-disclosure solutions is often significantly quicker and cheaper than reviewing paper manually or reviewing coded images through scan/code solutions:

• Less review time means lower fees for one’s client — it can only be a matter of time before clients question invoices or costs draftsmen challenge fee earner time at assessment because a solicitor failed to use the most efficient and cost-effective review tools available.
• Being able to review disclosure quickly and accurately can be a tactical advantage over opponents and help to force a dispute through to a conclusion swiftly to achieve certainty for clients.
• Cutting-edge e-disclosure tools can significantly reduce disbursements when compared with traditional scan/code solutions or photocopying. As awareness of such solutions develops, the proportionality argument for not disclosing electronic documents will no longer wash.

 

Does a client-focussed law firm proactively deliver such benefits to its clients or wait to be asked why others are? Who will be the first firm to integrate e-disclosure review tools into their standard dispute resolution service, lowering review time for all cases and availing themselves of the reduced e-disclosure fees that block purchasing might deliver?

 

Service Delivery
The ability to respond quickly to a client’s instructions may define the quality of the legal service delivered. Some e-disclosure service providers have processing capacity of up to 7 million electronic pages per day. These providers have the ability to deliver those documents onto an online review application as quickly as within 48 hours of receipt, enabling lawyers not only to comply with, say, a 20 day FSA deadline to produce, but also to review all those documents for privilege and develop a case strategy prior to production. Equally, knowledgeable dispute resolution departments are well placed to deliver value to their corporate department’s clients by assisting those clients to plan for electronic disclosure in order to reduce the costs and interruption suffered should disputes arise.

 

Pilot Project Opportunities

 

The eDisclosure™ service will be rolled out through a small number of subsidised pilot projects for which proposals from law firms are now being invited. Jonathan Brewer may be contacted via jonathan.brewer@lexisnexis.co.uk or +44 (0) 207 400 2885.