Reforming E-Discovery with a Bang

October 8, 2012 conduentblogs

On April 1, 2013, a day heralded as the “Big Bang,” the Jackson Reforms, which are aimed at improving the cost-efficiency of litigation conducted in the U.K., will take effect. The Jackson Reforms incorporate significant changes to the way parties conduct e-discovery and aim to promote access to justice and fairness at a cost that is proportionate to the value of the claim. The reforms are also of great interest to litigants in the U.S., Australia, Hong Kong, Singapore and other countries, since they offer useful guidelines on how to better balance the costs of litigation, particularly where the disclosure of electronically stored information (ESI) is involved.

Key Points in the Reforms

Below are some of the ways in which the Jackson Reforms will affect the disclosure of ESI in the U.K.

First, new CPR Rule 31.5 will replace the existing rule. Its objective is to assist parties in executing discovery in a cost-effective manner. CPR Rule 31.5A contains a range of options for disclosure for large commercial matters and other cases in which the costs of standard disclosure may be disproportionate.

In multi-track matters, once the parties have filed and served preliminary information about their expectations for disclosure in the case, the court determines how disclosures will proceed at the case management conference (CMC). The court has a number of options, ranging from issuing an order dispensing with disclosure altogether and ordering that a party disclose the “documents on which it relies” and request “any specific disclosure it requires from any other party” to limiting standard disclosure, or requiring any disclosure that it deems appropriate. Importantly, there is no default position; the rule states that “at the first CMC the parties and the court would be forced to turn their mind to what would be the most appropriate process to adopt in those proceedings” (at p. 370 in Lord Justice Jackson’s Final Report on Litigation Costs). This means that the CMC is a significant event during which the court will direct the parties to focus on the facts, expert evidence and disclose documents which pertain to the real issues involved in the matter.

The most interesting portion of the reforms is the radical “key to the warehouse” approach (see the new 31.5(4)(f)). This suggests that a court may order a litigant to simply hand over the “key to the warehouse,” an approach which would allow each party to remove privileged documents but require it to make all other documents available to the adversary. This innovative approach to discovery obligations is somewhat tempered by the indication that a court that enters a “key to the warehouse” order may also order that disclosure of privileged documents will not waive those documents’ privilege.

The reforms also allow the court to direct the parties with respect to how disclosures should be made, including the parameters of searches to be undertaken, the format in which documents should be produced or exchanged, and what parties should do if certain documents once existed but no longer do.

Rule 31.5 also provides that where the disclosure of ESI is concerned, the rule’s new provisions will operate in tandem with the provisions of Practice Direction 31B. By way of example, Practice Direction 31B’s requirement that parties complete and exchange e-disclosure questionnaires is intended to complement the parties’ execution of Rule 31.5’s required preparation and discussion of preliminary disclosure plans.

CPR 3 also includes provisions aimed at controlling costs. The rule requires that “parties “must file and exchange budgets as required by the rules or as the court shall otherwise direct” (CPR 3.1(3)). The court is also granted the authority to enter a “costs management order” that records the extent to which budgets are agreed to between the parties, and “thereafter control the parties’ budgets in respect of recoverable costs.”

As litigants across the U.K.—and the world—struggle to balance the costs of litigation with the value of their claims, including required disclosures of information, the impact of the Jackson reforms is likely to be monumental.

Additional Information on the Reforms

For more information, the Judiciary of England and Wales official website contains judicial speeches that have been delivered on this topic to date as well as the Final Report on Litigation Costs by Lord Justice Jackson.

Additionally, Conduent will be hosting a live webinar, “Preparing for the Jackson Reforms,” on October 15. I will present along with Senior Master Steven Whitaker, U.K. Royal Courts of Justice, Robert D. Brownstone, Esq., Technology & E-Discovery Counsel and Co-Chair, EIM Practice Group, Fenwick & West LLP, and Chris Dale of the e-Disclosure Information Project (moderator). Registration for the complimentary webinar is open to the public. 

Gabriela Baron, Esq. is Vice President of Business Development at Conduent. She can be reached at info@conduent.com.

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