As we have come to expect from the TCC, over the last year the judges have taken a proactive approach in grappling with and adopting practices that aid the efficient management and cost-effective conduct of complex, document-heavy litigation.
On 1 January 2014, the TCC adopted the e-disclosure protocol and supporting guidelines published by TeCSA, TECBAR and the Society for Computers and Law. Together, the protocol and guidelines are designed to provide a structured framework for discussions between the parties around identified issues as part of the e-disclosure process.
The latest edition of the TCC Guide was published in spring 2014. It makes clear that, while using the protocol is not mandatory, if parties do not use it and don’t have a suitable alternative way of dealing with e-disclosure, the court is likely to order them to use the protocol (section 11.2.3, TCC Guide).
What lessons have been learned in the past 12 months?
Feedback on the protocol and guidelines
As part of the implementation process, TeCSA set up a working group to collect and consider feedback from the court and TCC users (solicitors, barristers and e-disclosure suppliers). This asked about their experience of using the protocol, with the aim of amending the protocol and its accompanying guidelines if necessary.
Feedback has been very positive: the protocol has been well received and found to be useful. For example, a number of e-disclosure suppliers have reported that their TCC clients are using the protocol even where its use is not mandated. In every case, their comments have focused on the ease of use and clarity of the protocol and its guidelines. Aspects of the protocol that parties have found particularly useful include:
- The claw back provision (paragraph 7.2). The protocol goes further than CPR 31.20, whereby the receiving party cannot rely on a privileged document that has been inadvertently disclosed without permission of the court, and enables the parties to “claw back” inadvertently disclosed privileged documents. It also enables “claw back” of inadvertently disclosed irrelevant but confidential documentation.
- Its role as a reminder of the importance of preserving metadata (paragraph 3.1).
- Its help in keeping an audit trail (paragraph 4.1).
- Its clarification of use of key words and the need for review and analysis after application of key words (paragraph 5.1). There seems to be a common confusion about whether all or any documents need to be reviewed after an agreed list of key words has been applied to them.
- Its role in ensuring that any PDFs provided are both searchable and coded (paragraph 6.1).
The protocol was used recently in the ongoing high-profile TCC case of Accolade Wines v Volkerfitzpatrick and others, one of the biggest TCC cases of 2014. That case raises complex legal issues in relation to causation, rectification and the construction of warranties, as well as challenging technical issues. All six parties adopted the protocol for disclosure in this case and the general consensus is that it helped to make disclosure a more co-operative and efficient process than it might otherwise have been.
What next for 2015?
The recurring message from the feedback was the need for more “worked examples” within the guidelines, along with some minor amendments to the protocol itself. These requests have been taken on board and new versions of both documents are now available on the TeCSA website. More substantive amendments have been made to the guidelines, principally by including a number of appendices, providing users with worked-up examples of wording based on real experiences.
The working group is meeting later in January to discuss the possibility of organizing a workshop in the spring to explore the various strategies embodied in all the elements of the protocol.
Reaching beyond the TCC?
The protocol represents a “best practice” document that is relevant beyond the realms of technology and construction disputes. Therefore, its use should not be confined to the TCC and, anecdotally, I have heard that the protocol is being used in commercial disputes in other courts. Indeed, there is no reason why it shouldn’t be adopted by other divisions of the High Court or in international arbitration matters where, as well as being a useful checklist for parties in disclosure, it could record agreement between the parties or the tribunal’s directions on e-disclosure.