The Jackson Reforms encourage proportionate eDisclosure / eDiscovery in any jurisdiction

I am taking part in a panel discussion at LegalTech next week with Integreon and kCura on the subject of the Jackson Reforms. We will emphasise that the rule changes generally reflect duties to which lawyers are subject anyway, and in any jurisdiction, to find the best tools and techniques for conducting disclosure / eDiscovery proportionally.

I pointed yesterday to an observation by Mr Justice Ramsey that there will be “a few sweaty palms” as lawyers face the forthcoming changes to the UK’s civil procedure rules. Collectively known as “the Jackson Reforms” after Lord Justice Jackson who inspired most of them, they have also acquired the nickname “the Big Bang” thanks to a decision to roll out all the changes together.

This seemed a mistake to me when it was first announced 18 months ago, and it seems even more misguided now that we are a few weeks away from the implementation date and have yet to see the final form of the rules. I wrote about that in my article Uncertainty means expense as we wait for the Jackson rules.

The combination of fear and heightened expectations which results from this obscures the fact that the rule changes relevant to the disclosure aspects of case management are radical only in that both judges and lawyers have ignored the rules as they stand – a point which Lord Justice Jackson emphasised in his Review of Litigation Costs. They also reflect what both clients and courts should expect anyway.

There is emphasis on the duty of solicitors to discuss the scope of disclosure with their opponents, a discussion which must necessarily be undertaken on an informed basis, and whose results must be taken to the court for approval or adjudication. Anyone see anything new in that, anything which is not already part of the primary duty of a lawyer? You can only see this as “new” if you have hitherto ignored the express duty of case management required of judges, the obligation to comply with the overriding objective imposed equally on judges and lawyers, and the duty to observe proportionality which is part of the overriding objective. How can you do any of this, still less advise the client on risks and costs, if you do not have an informed understanding of the documents and data from which the evidence will come?

The judge must henceforth choose from a range of alternative approaches to disclosure in the so-called “menu option”. There is nothing new about that – judges have always had the power, and the duty, to decide on both scope and the method of giving disclosure.

Parties must submit budgets for approval by the court. You prepare budgets anyway, don’t you, for your clients, identifying the different ways in which the problem might be tackled proportionately? Well, since in a costs-shifting jurisdiction both parties have a contingent interest in controlling those costs, there can be no harm in sharing that information, can there? You don’t do costs budgets anyway? Perhaps a glance at the Solicitors Code of Conduct might help you appreciate the need for this, long before you start looking at the CPR.

The court’s right to impose punishment for non-compliance with rules, orders and timetables is to be exercised more rigourously. If you know the rules, and comply with them, then you will doubtless appreciate the power to punish those who do not. If you are one of those who thought that this part of the CPR was optional, then you are in for rather more, perhaps, than the “sweaty palms” to which Mr Justice Ramsey refers.

Two fundamental questions appear from all this: what are the true obligations under the disclosure rules once proportionality has been factored into it? And what is the most cost-effective way of achieving that?  A third point, which is not directly the concern of the courts, is how lawyers can bring value to their clients in working towards their commercial objectives. Richard Susskind will make it clear to you, if the Solicitors Code of Conduct does not, that you must seek out a method of working which is appropriate to the circumstances, including the cost. To do that, you need to consider all the options which technology and third-party service providers can bring as well as your own resources.

Just as the new rules are, for the most part, codification of duties which largely exist already, so the obligations described above are independent of the rules of any particular jurisdiction. The rules themselves may be specific to England and Wales, and may gain extra force in the cost-shifting context of that jurisdiction, but the basic principles of professional conduct which require you to find the best way of tackling eDisclosure / eDiscovery apply equally in the US and anywhere else which requires discovery – and not just in civil proceedings but in the context of regulatory and internal investigations.

This will be the theme of a panel in which I am participating at LegalTech in New York next week alongside outsourcing provider Integreon and litigation software provider kCura. The Jackson reforms may provide a context, but the real message is to do with seeking out the tools and techniques best suited to the task. Integreon’s approach is well set out in an article by Judy Lee called Disclosure costs – can legal process outsourcing (LPO) be the hero of the Big Bang? which includes quotations from Hogan Lovells and Allen & Overy supporting their approach. Steve Couling from kCura will describe how Relativity supports its users at the early decision-making stage as well as in subsequent review exercises.

As always, my own message is to do with understanding what choices are available – what do different solutions cost, what do they save and how do they fit within the demands of the case in hand? This has importance beyond the demands of rules and courts, not least because it allows lawyers to make informed decisions about their commercial arrangements with their clients. You cannot sensibly agree to alternative fee structures if you have no idea what the base costs are likely to be and it is this point, as much as others, which makes our subject universal and independent of my own jurisdiction.

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