On 1 November 2013, Edwards-Stuart J formally launched a new e-disclosure protocol to the masses as part of a stimulating and extremely well attended all-day conference, “E-disclosure in practice”. The protocol is the brainchild of Steven Williams and the TeCSA e-disclosure working group.
The event was organised by TeCSA, TECBAR and the SCL to provide practical guidance on the e-disclosure process. As well as a range of extremely knowledgeable speakers, all of whom have worked “at the coal face” of e-disclosure, the involvement of Edwards-Stuart J as the key note speaker and the presence of Stuart-Smith J showed just how seriously the TCC are taking the subject of e-disclosure.
So why is the e-disclosure protocol needed?
As Simon Tolson explained, TeCSA’s main rationale for developing the protocol was to give practitioners access to practical information about the e-disclosure process and to create a more level playing field in terms of understanding the process. In his lecture on disclosure costs, Jackson LJ acknowledged the problems that major disclosure exercises pose in terms of disproportionate costs:
“In larger actions where the relevant documents are electronic, the problem is multiplied many times over. That problem is accentuated because relatively few solicitors and even fewer barristers really understand how to undertake e-disclosure in an effective way.”
TeCSA saw the need for a road map that would guide the user through the e-disclosure maze by ensuring compliance with the CPR requirements and a better understanding of the available technology. The document-heavy nature of TCC disputes makes the impact that poorly managed e-disclosure can have on cost budgets and the risk of irrecoverable cost overruns even more acute.
The protocol recognises the need for early informed discussion and agreement between parties about the scope of e-disclosure. It provides an easy to follow template and guidance to assist in this process and to minimise the risks.
It was generally felt that the Electronic Disclosure Questionnaire (EDQ), though incredibly useful, is a very lengthy document and needed to be supplemented by a more user friendly document that the parties could adopt, adapt and use as the basis of their agreement on e-disclosure. It becomes a record of the parties’ agreement and is then adopted as part of the court’s directions in the case.
An entire e-disclosure pack
The TeCSA e-disclosure working group has prepared an e-disclosure pack, a valuable toolkit for practitioners which contains the following documents:
- E-disclosure protocol.
- Guidelines to the e-disclosure protocol.
- Guide to e-disclosure, which serves as a user’s manual designed to materially assist the practitioner in all aspects of managing the process. It also includes an analysis of the various vendors and the services which they offer.
All of these documents can be found on the TeCSA website.
How will the protocol work in practice?
It is still necessary for the parties to consider which method of disclosure is appropriate for their particular case from the menu of options contemplated in CPR Part 31.5.7. TeCSA’s website includes a useful note on the pros and cons of the different disclosure options available. However, the option chosen will, as noted by Edwards-Stuart J,
“inform the approach that is to be adopted when choosing the criteria for the electronic searches.”
The conference explored the difficulties of adequately fulfilling all the steps required before the first CMC in the relatively limited time available. The disclosure report (Form N263) and, if being used, the EDQ (Form N264), are to be served 14 days before the CMC, and cost budgets seven days before the CMC. The parties are also to try and agree a disclosure proposal no later than seven days before the CMC. Of course, agreement on the extent and type of disclosure is a fundamental element of cost budgeting. To do all this within four weeks of the acknowledgement of service or defence being served is challenging.
What is clear to anyone who has been involved in complex cases with voluminous documents is that it is well-nigh impossible to try and have constructive discussions and reach agreements on disclosure in the short time frame currently envisaged by the rules.
But all is not lost. This difficulty was acknowledged by Edwards-Stuart J and will be addressed by the TCC in its revised TCC Guide. In future, the court will fix the first CMC eight to ten weeks after the acknowledgement of service rather than within the first month.
This recognition of the scale of the exercise is a major step forward and should assist the parties in getting their own houses in order and then discussing and, if possible, agreeing on the form of disclosure and on e-disclosure, and then preparing costs budgets in good time before the first CMC.
The e-disclosure protocol has been drafted on the basis that discussions and agreement should take place during the pre-action stage as a matter of best practice. This begs the question whether the pre-action protocol therefore, rather than be abolished (as some have suggested), should in fact be amended to expressly cover use of the e-disclosure protocol during the pre-action phase.
Appendix B to the guidelines has a suggested pathway to the first CMC, which is very helpful, and explains that the dialogue process should be kick-started with the parties exchanging EDQs, followed by a disclosure meeting, agreement on the protocol and the filing of disclosure reports and EDQs. Thereafter, the parties will be ready to file their costs budgets in readiness for the CMC. Appendix A sets all of this into the timeline of a typical dispute.
What is the status of the protocol?
Edwards-Stuart J confirmed that the TCC judges were consulted and wholly endorse the protocol. It will be formally adopted for use in the TCC from 1 January 2014.
In addition, the TCC Guide is being amended to incorporate reference to it (along with some other amendments necessitated by the Jackson reforms). Edwards-Stuart J is doing this and hopes to get it completed by the end of the year in readiness for 1 January 2014. And remember, while use of the protocol will not be mandatory in the TCC, 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.
Reaching beyond the TCC?
The protocol has had a “soft” launch and it was incredibly well received at the conference, with plenty of lively debate on the issues that it raises. It will clearly be an extremely useful tool to guide practitioners outside of litigation as well. The matters covered by the protocol are directly relevant to document production in international arbitration, where it could form the basis of an informal agreement between the parties or the basis of the tribunal’s directions on e-disclosure, as well as being a very useful checklist.
As users of the TCC, we should all be delighted to see that yet again it is the TCC that is leading the way in grappling with and adopting practices that truly aid the efficient management and cost effective conduct of complex, document heavy litigation. And who knows, we may find that before long the protocol is adopted by other divisions of the High Court, which would result in a streamlined e-disclosure process across the High Court.