What does electronic Disclosure mean to you?

If Lord Brooke has his way, parties to civil litigation should be required give Disclosure electronically. Chris Dale shows that this is not necessarily the burden it may appear to be and suggests that the tools already in your office are adequate for many cases

For many firms engaged in litigation, Disclosure involves typing up a list of the documents required by the Part 31 of the CPR and sending a copy to their opponents followed, when requested, by photocopies of all or most of them.

If, as seems likely, the courts are about to require parties to exchange Disclosure information electronically together with electronic copies of the disclosed documents, then a new approach will be required. This article explains briefly what is involved in electronic disclosure.

We have written separately about the proposed changes (Is IT going to happen at last for Disclosure?) and analysed what we see as weaknesses in the draft Practice Direction (The Proposed new Practice Direction - Guidelines for the Use of Technology in Litigation in any Civil Matter). We also have various detailed notes and articles on our web site at www.openlaw.co.uk. This article addresses the simplest scenario – two parties to litigation have been ordered to give Disclosure electronically under the new Practice Direction, and have been referred to the court-approved Protocol for Data Exchange and the “default minimum electronic standard”.

We are not in fact going to refer much to either of these documents, save to say that their aim is to set out some basic rules which, if followed by both parties, will make it both easy and cost-effective for them to give each other electronically what has conventionally been supplied on paper. Those who are drafting them state that they will consider themselves to have failed if the “minimum” standard is beyond the reach of most firms.

They are drafts and will change as to detail, which is why we do not consider them here. Instead, we look at the basic elements of any electronic exchange.

These consist of the same two components as at present – a list of documents and the documents themselves. The list is in a form which generally looks like this:

The usual idea of a document is one or more pieces of paper being (in this case) the letter thus described. The maker of the list usually needs to know at least two other things about the document – where it came from (e.g. which file was it in) and where it is now (so he can produce the original when so required). He also needs to make two decisions about it – is it relevant? and is it privileged? None of this appears on the face of the list as served.

We can look at these components – the list and the documents – separately.

The List

If you break down the components of the entry shown above, it consists of five elements:


A number Usually reflecting the document’s place in an ordered (usually date ordered) list
A Description What the document is – “Letter” or “E-mail”, sometimes with more detail – “Letter about draft contract” or “E-mail attaching draft contract”
Author The author, sender or creator of the document
Addressee The addressee or recipient of the document
Date The date on which the document was prepared or sent

It is not excessively technical to describe these components as “data” or to say that they might exist in “fields”. A collection of columns (e.g. all the list numbers) and rows (holding all the information about a single item) makes a “database”.

The only real difference between our example extract from a traditional list of documents and the technical-sounding “database” is therefore the number of units into which the information (or “data”) is broken up. The list might just as easily have been laid out thus:

A Microsoft Word document containing a table laid out like this should comply with the “default minimum electronic standard” or an acceptable variant on it. One attraction of this style is that is uses exactly the same convention as most people have always used, just laid out slightly differently. What matters is that all parties adopt a single, agreed standard and that the courts provide easily-followed guidelines. Two parties who agreed to adopt either of these styles could easily merge the two tables to make a single list.

The extra column "Estimated" is to allow users to put in 'undated' or estimated dates as an alternative to a exact date.  It helps with data exchange to keep real dates and 'text' dates in different columns.  Some practitioners use the date column to attribute a 'best guess' sort date to estimated dates, so such documents appear in the correct position in a date sorted list.

You can go one better with a Microsoft Excel spreadsheet. A novice could set out the data shown above in Excel. Excel brings better sorting and filtering capabilities than Word and would allow you to add extra columns, for your use only, to record other information about documents – the source and location, the decisions about relevance and privilege could be included in your copy of the spreadsheet but omitted from the version sent to opponents.

Few firms can say that this is any harder than their present mode of typing up lists. The benefits are considerable, even just at the level of saving retyping. Furthermore, the ability to exchange goes beyond simple swaps into the same software tool. A list constructed by this means could be imported into a dedicated litigation system; conversely, the output from most litigation systems, however grand, could be provided in a form readily stored in a spreadsheet. Then David & Co from the High Street can exchange with Goliath LLP from London EC2.

Electronic Files

With the list prepared in a form which is exchangeable, what about the documents themselves? Many exist only as paper but most are in the client’s possession as electronic files – word-processed documents, spreadsheets and mail files. There seems little point in reducing all these to paper and then photocopying them, when they might be supplied by the client in their original form and delivered to opponents in the same form. Those which do exist as paper can easily be scanned as images and the whole lot delivered to the other side with the electronic list.

There are some caveats, of course. One is that lawyers like paper and many are not comfortable with reading on screen. Another is that electronic files, particularly mail messages, may well contain information beyond what appears on their face. Larger Disclosure exercises may raise all sorts of issues about duplication, attachments and so on. These, however, are the same issues which would arise in the same matter if the Disclosure were handled with word-processor and photocopies.

The point to grasp is that “data exchange” is not a black art practised by technicians in the IT departments on large firms, but can be a straightforward application of the tools available within any lawyer’s office. Three factors have prevented the more widespread use of technology:

• The absence of any agreed standards

• The CPR’s failure to apply the same dirigiste approach to Disclosure as was applied to almost every other aspect of the conduct of litigation

• A perception, which we hope this article does something to correct, that expensive software and deep technical knowledge are required.

The over-riding element which has been missing is a firm lead from the courts. That, it seems, is now about to happen. The precise form is important, in that an over-complex requirement will kill the initiative.

Moving onwards

It may seem odd that a company whose business is selling sophisticated software for handling documents in litigation should urge lawyers to use their word-processors and spreadsheets to make lists. We have, after all, spent the last decade urging people to use databases, with the expressed suggestion that they buy our Openlaw software for the purpose.

There is no inconsistency here. It remains true that Openlaw and its kin provide functionality which is indispensable for larger lists and for the coding, sorting and sub-listing functions which are required for preparing witness statements and getting ready for trial. Most of our software sales are to firms who find themselves confronted by a case so big that there is clearly no alternative but to use technology to handle the documents within the modern timescales.

We have always preached, however, that the true benefits of electronic listing come from practice and experience, and the one needs to start with the sailing dinghy of everyday cases before taking charge of the ocean-going vessel of major litigation. The proposed new Practice Direction will give impetus to this. Rightly, its authors’ ambition is to keep the new requirements within the grasp of all, and we entirely endorse this.

When you have made a few simple lists and exchanged them and their associated electronic files with others, you will soon want to do more – to code your entries by issue and by witness, to make electronic Bundles of sub-sets of documents, to print bundles of images with page numbers on them or to send the whole lot to your client, barrister or expert.

If you want to follow up the suggestions made in this article please do contact us or go to our web site at www.openlaw.co.uk. There you will find, amongst other things, a more detailed article about electronic data exchange which goes into the complexities of large-scale exchanges.