What’s lurking in the eDisclosure woodshed which might take you by surprise in the coming year?
Sanctions for rule breaches
Rule 3.9 CPR hasn’t gone away just because Mitchell has been replaced by Denton. The Denton requirement is that the court take account of all circumstances in deciding whether to give relief from sanctions. 2015 will bring us sanctions cases whose outcome reflects the whole conduct of the litigation to date, so start preparing now for that day, 14 days before the first CMC, when you must have your Rule 31.5 ducks in a row. You don’t know what Rule 31.5 requires? Good luck.
Agreements and Protocols
We will see more attention paid to the detail of agreements about disclosure between the parties. We have already seen one case (Smailes & Anor v McNally & Ors [2013] EWHC 2882) in which the judge found himself unable to determine whether or not the parties had reached an agreement about the management of eDisclosure. If you are in the Technology and Construction Court you will be chivvied towards such an agreement by the TCC Protocol, a new version of which is due out soon; we will see the influence of that spread to other courts during the coming year, as courts flex their active management muscles and realise how much future trouble can be nipped in the bud by a sensible agreement up front.
eDisclosure checklists and questionnaires
We will also see the increased use of questionnaires and checklists within firms designed to make sure that nothing gets overlooked. It would be prudent to base these on the Electronic Documents Questionnaire from Practice Direction 31B but, whatever its origin, lawyers will need a standardised way of making sure that nothing gets overlooked. I came across one (very good, regional) firm recently which is devising a kind of playbook to ensure a standardised approach between offices covering all the phases of litigation, including disclosure. Expect to see more of these as firms, released from the stupid post-Mitchell focus on trivia, get their eyes back on the procedural ball.
Non-conventional data types and sources
This checklist idea will be encouraged by a case in which the lawyers will simply forget to ask their clients or their opponents about some source of electronic data whose absence becomes painfully obvious at a late stage in the proceedings. This might be an apparently trivial social media source like Twitter, Facebook or LinkedIn or something else which makes the lawyers suddenly realise that all this talk about ‘the cloud’ embraces everyday applications which people use to communicate. It might be a photograph whose metadata pins a witness to a place and a time. These are no less a ‘document’ than an e-mail or a Word file. The problem won’t come simply because of a formal defect in compliance with the rules but because the overlooked source contains evidence which turns the case.
The Internet of Things and Wearable Technology
Two other technological developments will move from the realm of apparent fantasy into disclosable evidence. One will be the Internet of Things. A ‘document’ is anything on which information of any kind is recorded, and that now includes a wide range of domestic, industrial and other devices which record and store information and share it via an IP address. The other will be some piece of wearable technology – a Fitbit, Google Glass, a smartwatch, or any one of the increasing number of devices which people now carry around with them in addition to the all revealing smartphones and tablets.
Technology-assisted review
Technology assisted review will move from being sneered at as a ‘black box’ to everyday use – I don’t mean that everyone will use it for every case, but lawyers squeezed between rising volumes, abbreviated timetables, court strictness and costs pressure will come to see that they can only cut through the conflicts by using technology designed to leverage (to use that ghastly but useful term) human input across document populations too great to be reviewed economically by conventional means. 2015 will be the year when the benefits of prioritisation become clear – who will stolidly plod through file after file in date order when readily-available technology will put the entire corpus of documents into a presumed order of relevance?
Information Governance
Another term will make the transition from uncomprehending derision to reality. Information Governance embraces a wide range of functions and skills. Clients must surely tire of paying their lawyers to deal with their information management in a hurry and at extravagant hourly rates, and will start seriously considering pre-emptive categorisation and deletion of material which is of little or no value.
RTFR and RONI
Two sets of initials matter for 2015. One, my favourite, is RTFR, where the first R is ‘Read’ and the last R is ‘Rules’. The other set is RONI, the negative twin to the perky ROI. In an eDisclosure context, the Risk of Not Investing applies to training and skills as well as to technology.
