On October 1, 2010, a new Practice Direction – 31B – that addresses the disclosure of electronic documents took effect after a long period of deliberation and revisions by the Civil Procedure Rules Committee. This Practice Direction presents several implications for legal practice in the UK.
First, the language contained in Practice Direction 31B is mandatory and will likely result in parties taking a more cautious approach to ediscovery in order to avoid orders from the court that require more action to be taken in regard to disclosure practices. In addition, parties may take a more conservative approach now to avoid various penalties for undertaking unreasonable actions, such as the results that occurred in Digicel (St Lucia) Limited v. Cable & Wireless PLC and Earles v. Barclays Bank PLC.
Second, Practice Direction 31B emphasizes the need for early and ongoing communication between parties in order to reach agreement on a sensible approach to edisclosure. This Practice Direction establishes an agenda for parties to discuss prior to the first case management conference. These discussions should include the following:
- Information parties have in their control, where and how it is stored
- The extent of the search for relevant documents
- Software tools and techniques to reduce the burden and cost associated with edisclosure
- Formats for exchanging documents
Next, the Practice Direction introduces an Electronic Documents Questionnaire, which serves as a means of obtaining and exchanging the required information in a structured format. Parties must provide detailed information about electronic documents and storage systems, and indicate which sources they propose searching in addition to any technology they wish to use.
The bottom line: Practice Direction 31B is designed to encourage opposing parties to reach an agreement on what measures are appropriate and reasonable in order to acquire the key electronic information needed in a proportionate manner. The Practice Direction and Questionnaire facilitate this process by providing parties with a comprehensive and uniform agenda of discussion topics. In addition, the Practice Direction establishes general principles regarding the use of technology in order to move towards an edisclosure system based on proportionality and cooperation.
Unsure where to begin in the edisclosure process? Turn to a trusted expert to help you prepare for the disclosure of ESI before the time-critical events of litigation arise efficiently, while assisting with identifying, collecting, preserving, reviewing and producing electronically stored information.