Is IT going to happen at last for Disclosure?

The proposed Practice Direction requiring the use of IT for Disclosure, and a draft Protocol for Data Exchange have been a long time coming. They arrive only just in time to cope with the enormous growth of potentially Disclosable documents, many of them existing only in electronic form. Chris Dale looks at why is this happening now.

There have been some false dawns on this subject. Our Litigator’s IT Brief of Autumn 1993 led on the newly-published report by Hilary Heilbron QC, which castigated the civil process as "unnecessarily technical, inflexible, rule‑ridden, formalistic and often incomprehensible" and criticised the prevailing attitude to Discovery which, the report said, fell short of applying the proper test of relevance. The same issue of our IT Brief referred to the ORSA Protocol, a first pass at defining standards for data exchange; this foundered for lack of any widespread encouragement (still less compulsion) from the courts.

Next up was Lord Woolf, whose Interim Report of 1995 devoted a whole chapter to the benefits of IT in reducing costs and speeding up the litigation process. This all mysteriously disappeared in the new Civil Procedure Rules of 1996 which gave no encouragement at all to the use of technology – one suspects that any reference to computers was struck out by civil servants who suspected a cost falling on the Lord Chancellor’s Department, and by judges who felt that the CPR itself posed quite enough in the way of new challenges.

So, whilst pretty well everything else changed with the CPR, lawyers were left with a rules and costs regime as to the newly-named “Disclosure” which had appeared to “reward the indolent and penalise the efficient” in the words of one former Chief Taxing Master. What has happened to bring the subject back onto the agenda?

The answer lies in a mixture of long-term movements and sudden initiatives. All was not entirely dormant. The larger firms exchanged Disclosure data between themselves on an ad hoc basis, and an interest group arose from this. Called LiST, it consists of IT-aware lawyers and client-aware litigation support managers who between them worked up a new draft Protocol for data exchange.

There was no time to lose. Even as the CPR purported to limit the scope of Disclosure, technology was moving the goal posts. The proliferation of e-mail and the ability to send messages and attachments, to reply to them, forward them and blind-copy them widely, led to a steep increase in the number of potentially disclosable “documents”, many of which are never reduced to paper in business life. At the same time, the pressures of court-led time-tables, client-driven cost considerations and penalties for over- as well for under-disclosure, placed a greater premium than ever on sorting relevant documents from irrelevant, important from unimportant, disclosable from privileged, and on weeding out duplicates and exchanging documents with the other side.

Some suppliers (not least ourselves) have long been ready for the day when it became clear to the courts and to the profession that only technology could shoulder the burden of doing all this cost-effectively. The mechanics of capturing, storing, filtering, categorising, sorting and printing disclosure data, and then of exchanging it with others are well established. Clients are mystified that their electronic data, electronically created and electronically exchanged between themselves so efficiently, has to be printed off, photocopied several times and entered row by row into a word-processed list which is itself then printed and taken up the road on a bicycle (where someone else re-types the information into their list). The missing element was the push from above.

Meanwhile, Lord Justice Brooke was nearing the end of an 18 year haul to bring the courts and their processes into the present. He was frustrated at every turn, not so much by vested interests and budget considerations (he was once heard to say “a judge cannot order so much as a light-bulb”) but by sheer apathy, not least amongst the solicitors whose unwillingness to embrace new ideas he saw as suicidal. He is, he reminds us, from a political family and something of that seems to have rubbed off in the way he has played a long game to achieve his objectives. He has been Judge in charge of Modernisation for over three years; he is now Vice-President of the Civil Division of the Court of Appeal; and he has just been appointed editor of the White Book. He is close to the end of his career, and if he would not relish the epithet which Randolph Churchill once threw at Gladstone – “an old man in a hurry” – he is certainly determined to achieve his objectives before he retires.

Enter, perhaps appropriately, a new force from the colonies come to teach the old country a thing or two. Sandra Potter, a Director of the 3C Consulting Group of Australia was involved in setting up the first electronic court in Victoria and came over here on a mission to convert our courts with much the same fervour that churchmen once carried from here to Victoria. Like them, it seems, she will not go away until her work is done, and like them also she carries a text – in her case a draft Practice Direction and a Protocol for data exchange in court proceedings.

Sandra Potter seems to have hit it off with Lord Brooke, whose hand can perhaps be detected behind the dust-storm she has raised. Between meetings and seminars, new drafts fly around for comment with LiST and a dozen other acronymically-labelled bodies, reducing into a period of a few weeks the end of a consultation and discussion period which seems to have been going on forever.

One needs to be a little cautious about this sudden rush of blood to the head. As this is being written, both the Practice Direction and the Protocol need a lot of work on them before they will have the desired effect – after waiting this long, we can wait a little longer for versions which carry the right balance of carrot and stick and which will work as well in the High Street as in EC2.

We write elsewhere about this, and about the aspect which really matters – how can firms and their clients not merely comply with the proposed new rules but benefit from doing so, and do so now?

Chris Dale

March 2004