Sweeping amendments to the UK’s Civil Procedure Rules are now in effect. These amendments, which are designed to control the scope and expense of litigation, have significant implications for e-disclosure. Chris Dale, Founder of the E-Disclosure Information Project and a member of Senior Master Whitaker’s Working Party that drafted the new Practice Direction and ESI Questionnaire recently shared the following insights in a podcast with us.
With the reforms, judges will be taking a much more proactive role in ensuring the costs of disclosure remain proportionate. Two of the most salient aspects designed to reign in costs include costs management and the menu option.
When judges elect to follow the “costs management” provisions, parties must set and exchange a budget at a matter’s inception and keep track of the budget throughout the case. The budget must forecast not only disclosure costs but also costs for every stage of litigation. Even when formal costs management procedures are not applied, parties still must estimate the cost of disclosure. Either way, parties are required to try to agree on projected costs and then submit their budget to the judge. During the matter, the judge will monitor expenditures to ensure the costs of disclosure—and the case as a whole—remain proportionate.
As part of the budgeting exercise, parties must undertake in-depth disclosure planning. Lawyers will have to meet with IT and other client representatives early in the process to determine the scope of potentially relevant data. By the time the case management conference takes place, parties must be prepared to exchange information regarding the budget and about the proper scope of disclosure, the types of electronically stored information at issue, and any anticipated difficulties.
Menu of Options
The amendments also replace the standard disclosure that was the default for most cases with a menu of six options. Now, the parties must choose from among a variety of alternatives that include no disclosure, standard disclosure, and highly detailed disclosure. Parties should try to reach an agreement on the method of disclosure; if they do not, judges may be required to become more involved in the process and may even direct the parties’ choice of search queries, tools, and technology.
Based on the new rules, organizations will need to decide what disclosure functions to keep in house, what functions to outsource, and what technology to apply very early in a matter. Dale suggests that law departments begin to develop metrics now that will assist them in choosing the right approach. For instance, if parties examine their annual legal spend, they will be able to determine the most cost-effective approaches to disclosure in different types of matters. As the new disclosure model matures, Dale expects parties to turn increasingly to alternative fee arrangements, such as fixed fees, to improve predictability in the budgeting process.
With these reforms, compliance with the CPR is no longer optional. To expedite the early case assessment and budgeting process the amendments require, organizations will likely need to find a long-term disclosure partner that can help them set a realistic budget and choose the most reasonable tools and technology to achieve optimal results.
About the Author