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Edisclosure: be prepared for Civil Procedure Rule 31.5A in April

by Adrian White*

The full scope and complexity of an eDisclosure exercise often only becomes apparent much later in proceedings, and usually only after the exercise has already begun. As a result, assessing the costs of eDisclosure are not often considered until relatively late in proceedings. From April, Civil Procedure Rule CPR 31.5A will augment CPR 31B (Disclosure of Electronic Documents), the most significant effect of which will be to require the parties to litigation to agree a budget for the eDisclosure exercise at the first Case Management Conference (CMC).

Under the new rule, two weeks prior to the first CMC, parties will be expected to provide a report detailing a budget for standard disclosure, the details of any documents identified as relevant to the issues of case and the locations of those documents. In conjunction with CPR 31.5A, practice direction 31B also imposes a duty on the parties to discuss and agree what technologies, techniques and strategies will be used to undertake the eDisclosure exercise. Directions on eDisclosure cost budgets, search strategies and methodologies and the formats in which documents should be disclosed to the other side may also be issued by the judge.

The most critical issue for lawyers will be their ability to forecast the cost of standard disclosure more accurately. The primary cost drivers in an eDisclosure exercise are the number of custodians, the type and volume of data and the location of the data. In best practice, all of these factors will be assessed by the instructing lawyers during a preliminary scoping exercise with their eDisclosure consultants. Once the starting position is known, an appropriate combination of people, process and technology can be put in place to minimise the cost of the exercise.

New technologies can greatly assist with this pre-CMC stage of the process: Data Sampling, Early Case Assessment and Technology Assisted Review – are just a few examples of a growing number of methodologies and processes aimed at increasing eDisclosure productivity while controlling costs.

Data sampling and assessment tools can also help to pre-process data and deliver early insight as to the likely scope (and potential cost) of the full eDisclosure exercise. This approach also provides powerful analytics and visual aids to help to more easily identify in advance where the most relevant data might be located before full processing is commenced.

Using such technologies to cull data early will have a positive effect on managing the costs of the actual review and time to complete the exercise. Post April, it will not be acceptable for lawyers to attend a CMC without a clear understanding of their clients’ documents, how they intend to review them and how much the project is likely to cost. Even before the CPR 31.5A takes effect, the courts have already shown their willingness in a number of cases to penalise parties that over-spend on eDisclosure. The implications of the rule are clear, understand the costs drivers to deliver the best and desired outcomes – and come prepared.

* Adrian White is a Senior Consultant at First Advantage Litigation Consulting in London.  Adrian has 20 years of litigation and regulatory case management experience and spent 13 years at Clifford Chance LLP, where he managed the eDisclosure and review aspects of local and global investigations and High Court litigations for some of the world’s leading corporations and financial institutions.