A webinar which I am doing with Consilio on 24 April will focus on some of the positive aspects of the new UK Civil Procedure Rules relating to case management and disclosure. The panel includes Marla Bergman, VP, Assistant General Counsel, Legal and Internal Audit at Goldman Sachs and the moderator is Garry Bernstein, Director of Consilio in London.
Like all new rules, Rule 31.5 and the case management structure of which it is part, bring new duties including increased obligations to know about electronic sources of information, to discuss them with opponents and, most significantly, to estimate the costs of disclosure – this is a freestanding disclosure obligation, independent of the costs management regime.
Many lawyers, so one judge has predicted, will have “sweaty palms” at the thought of estimating costs; another has predicted “blood on the floor” when parties seek to vary their budgets. One person’s burden, however, is another person’s opportunity.
What if you were the lawyer who was on top of the numbers – who knows how to estimate costs, who keeps metrics from past cases, and who has an open line to providers who can quickly provide transparent predictions about the costs of alternative approaches? That may inform not only your strategy but your tactics, in the sense that opponents and courts are more likely to be swayed by arguments from someone who clearly knows what he or she is talking about. Furthermore, the rules do not merely permit or encourage arguments about proportionality, but positively require them.
Much of my thinking about eDisclosure metrics, and their value in the right hands, comes from a panel which I moderated in Washington last year for Legal IQ at which Marla Bergman was my star panellist. She was eloquent on the value of keeping statistics from past cases to inform decision-making in present one, and it is easy to see how this applies to the obligations under Rule 31.5 to argue both about the scope of disclosure and about the method of doing it.