The e-disclosure practice direction and electronic documents questionnaire in tangible form

Since I have been banging on about the “proposed” or “pending” edisclosure practice direction for months now, it is not surprising that everyone seemed to think that I would be the first to know when it had been formally published. I was nine days late in reporting its publication by the Ministry of Justice and, even then, did not point to a source for the official version.

To judge from the messages I have had since, some of you felt that this was as if King Aegeus had somehow failed to spot the sails of Theseus’s ship despite his long vigil on the Cape of Sounian.  One correspondent was “surprised” and another “amused” that the news had reached me via Twitter, as if I should  have been watching the MoJ web site night and day; perhaps they think that the Master of the Rolls would telephone me personally when the final signature landed on the parchment or whatever they print Statutory Instruments on these days.

The reality is that helping to draft these things gives you no special status when it comes to tracking their progress; indeed, like Aegeus, I did not know whether to expect black sails or white ones, which is why I said nothing concrete about the PD until I saw an announcement in official form (if you are lost by all this stuff about Greeks on cliffs and monochrome sails, by the way, Plutarch’s Theseus is a good read).

By the time the good ship PD finally came in, and with white sails, I was tied up with something else, as I have recorded elsewhere. My brief post about it was knocked off between a meeting and dinner, in an hotel room where the curtains opened and closed of their own volition but you couldn’t find a light switch (see Monica Bay’s infuriated article  about this – those who do not know about Theseus may also not understand Monica’s heading; Fiat Lux is not a reference to an upmarket Italian car but means Let there be Light. I wish I had been able to work out that you needed two switches on opposite sides of the room to turn on the desk lamp).  Although no subject is usually dearer to my heart than the edisclosure practice direction and questionnaire, its final arrival after two years’ slog caught me when I was least able to report on it. OK?

Anyway, here it is,  amongst the other updates authorised by the Master of the Rolls for inclusion in the Rules from 1  October. It lies between pages 22 and 39, and includes the electronic documents questionnaire and the guidance notes. The S.I. (2010 No. 1953 (L. 13) if you are interested in minutiae) was laid before Parliament on 2 August (thank you Mike Taylor of iLit for supplying that). It does not itself refer to the practice direction (nor would one expect it to) but it does properly set out some minor consequential amendments to the rules, which is enough for even me to believe that the PD has been adopted. You need to have lived through the experience of coaxing the Civil Procedure Rule Committee into the 21st century to understand  my caution about this, and my relief that they did not shy at the last fence. Fiat Lux, at last.

My first proper outing to talk about a practice direction which I can actually produce to the audience comes next week, when I am due to speak twice to a large regional law firm. It will be good to remove the word “proposed” from my slides. I will, of course, be writing more about the practice direction in due course. As you would expect, I am less interested in plodding through its provisions than in explaining how it might be used  to focus attention, proportionately and at the earliest reasonable opportunity, on the documents which really matter.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Litigation, Litigation Support. Bookmark the permalink.

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