by Symantec’s ediscovery counsel Philip Favro
Be sure to circle the month of April on your 2013 calendars. That is the projected effective date for new Civil Procedure Rule 31.5 in England & Wales. CPR 31.5 is designed to modify the disclosure process and usher in a new era of proportional discovery in the UK. These changes figure to be significant, particularly as they come on the heels of new Practice Direction 31B. Between the Practice Direction and CPR 31.5, the bar is now being substantially raised for how UK lawyers handle ediscovery. That lawyers need to take particular note of these changes and their impact on disclosure was highlighted last year when Lord Justice Jackson declared that “few solicitors and even fewer barristers really understand how to undertake e-disclosure in an effective way.”
Presently, courts may order some form of standard disclosure or dispense with disclosure altogether. However, under the revised version of Rule 31.5, courts in England & Wales will have several options for addressing disclosure of all multi-track claims (except those for personal injuries). This new “menu of possible disclosure orders” will enable courts to tailor a disclosure plan to fit the specific needs of a given case. In particular, courts may provide direction regarding particular searches for documents, the phasing of disclosure in different stages, and the formats for disclosing documents.
Furthermore, new Rule 31.5 emphasizes the importance of early and efficient disclosure. For example, each party must serve a report two weeks before the first case management conference (CMC) that describes existing documents relevant to matters at issue in the case. The report must also specify the location of such documents and cost estimates for standard disclosure. Parties must then meet a week prior to the CMC to reach an agreed upon plan for disclosure that satisfies the “overriding objective.”
In addition, the provisions from the new rule are equally applicable to electronic documents. This is accomplished by having new Rule 31.5 operate in conjunction with Practice Direction 31B. As Lord Justice Jackson explained, these two provisions “fit neatly together” so as to ensure that disclosure of electronic documents meets the overriding objective.
All of which places a demand on lawyers to understand how to undertake ediscovery in an effective way. While it is essential to understand the particulars of new Rule 31.5, deploying effective, enabling technologies will be just as critical to ensuring compliance with the new disclosure provisions. This is because both the new Rule and the Practice Direction emphasize the role of technology in meeting the overriding objective in disclosure.
In summary, new Rule 31.5 will likely represent a sea change for ediscovery in the UK. Nevertheless, savvy lawyers who learn the rules and use effective the tools to support their disclosure process can rest assured that they will likely be prepared for the rule’s implementation in April 2013.