The Tower

Those two words and all the menace they contain must have overshadowed the lives of many of the inhabitants of these islands over the centuries. After all, being sent to The Tower meant damp and insanitary conditions, poor food and rough treatment leading often to ignominious execution. Remember Thomas More and Anne Boleyn to name but two of the unfortunates who fell foul of the power of the King.

These islands are littered with memorials to historical events and one of the most outstanding is The Tower of London. Built by William the Conqueror following his victory at the Battle of Hastings it was originally a royal palace but soon became a prison and a visible reminder to the defeated English that their new masters from Normandy were not to be thwarted.

I can almost hear the readers snorting that the Conqueror had little knowledge of Smart e-Discovery and even less need to understand its intricacies but I beg them to bear with me because we are about to enter a new dawn in the Strand and elsewhere throughout Her Majesty’s courts.

On 1st October 2010, Practice Direction 31B: Disclosure of Electronic Documents (PD31B), supplementing CPR Part 31 comes into force. Unless the court orders otherwise, PD31B applies to proceedings started on or after October 1st 2010 and applies to proceedings that are (or are likely to be) allocated to the multi-track (which means those cases involving more than £25,000 or which are not straightforward).

I propose to post a short commentary on PD31B shortly in our “all you need to know” section on the right hand side of this page to assist lawyers and their clients who have yet to come to terms with or possibly to grips with this new phenomenon, but today I want to highlight a potentially controversial provision contained within the new rules which may have advisers and their clients worrying about where they will end up and whether their heads will still be attached to their shoulders.

Many of you will be aware that since the judgment of Master Whitaker in Goodale v Ministry of Justice, parties to litigation have been able to take advantage of what was then called the ESI Questionnaire which the Master annexed to his judgment when confronted with the problems of e-disclosure.

PD31B introduces the Electronic Documents Questionnaire (EDQ). Although not compulsory (the wording reads: “In some cases the parties may find it helpful to exchange the EDQ…”)(Rule 10), many lawyers are concerned about the requirement to sign a statement of truth in relation to the answers given when the EDQ is used.

Judging by the number of questions relating to this provision raised in conversations with litigation lawyers and at recent seminars we have given on PD31B, this is an issue which is of real concern.

Lawyers are used to statements of truth which have been around for many years and indeed I recall that they were viewed initially as a useful way of engaging the client in the litigation for which they were responsible!

What is different here is that the person who signs the statement of truth has to attend the first CMC and any subsequent hearing where e-disclosure is likely to be in issue, the inference being that they will have to answer for their sins of commission or omission or at least seek to justify the answers they gave or the reasons why they now want to change them for something different.

Will lawyers have the technical know how in order to complete the questionnaire, let alone sign a statement of truth? Will their clients? Of course, in some cases the answer will be yes but what about what I suspect will be the majority of cases where neither the law firm nor its clients have the requisite knowledge or expertise? Some of the questions requiring an answer are highly technical and the ramifications of particular answers may be enormous which means that parties will have to take great care about the answers they give.

I received an email alert recently prepared by Clark Sargent of Wragge & Co and his team entitled E-disclosure-are you ready to sign? . In the article Clark points out that “proceedings for contempt of court may be brought if a person makes, or causes to be made, a statement of truth without an honest belief in its truth” and it is clear that this is and is intended to be a serious and onerous obligation for the party to litigation to discharge.

Our experience is that lawyers are seriously exercised about this provision because of the obligations imposed by PD31B. So what is the answer?

As so often with things legal, I suspect the real answer is that it depends! It will depend on a number of factors such as the expertise of the advisers or their employees and the use to which they seek to put the EDQ if they use it at all.

Time and experience will tell us what the best practice will be but for the present the best solution we have come up with is a mixture of using the EDQ as a template in discussions with the other parties but not formally lodging it at court (remember it is not compulsory) and ensuring that the answers in the EDQ lodged at court are carefully thought through. In either case parties would be well advised to include in their deliberations input from not only the lawyer and the client but any in house Counsel, any managers involved in the dispute, the client’s IT department and a preferred technology provider whose knowledge and experience of helping other lawyers through the disclosure process will be invaluable particularly if their advice is taken early before mistakes are made and unnecessary cost incurred! Most of this advice, if not all, is given without charge, the expense being incurred after a sound strategy has been debated and agreed.

Incidentally I do not entirely agree with Clark when he asserts that PD31B loads the e-disclosure exercise up front with the cost implications which flow from that. Of course in some cases he might be right and the parties are definitely being encouraged to think about these issues earlier than previously.

I believe getting to grips with issues such as where the data is and how it can be accessed by whom and when and then sifting through it using the latest technology will ultimately save the client lots of money particularly if it means that lawyers only review the really important material and do not spend hours wading through material which is irrelevant or merely copies of other data they have already seen. Technology today is available in the market from a variety of specialist providers and is available on an iterative basis. There are no long term contracts and the technology is always tailored to the demands of the particular case or client so you only spend what you need to spend and do not have to commit huge sums of money up front.

Where I do agree with Clark is that the new PD31B imposes onerous obligations and if you use the EDQ then you will have to take very seriously the obligation to know and understand the answers you give to the questionnaire before appending your signature.

Proceedings for contempt of court are bad enough but may be slightly less worrying than the possibility of a sojourn in The Tower for those who do not take this seriously!