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The New Practice Direction and e-Disclosure

‘The New Practice Direction and e-Disclosure – Best Practices for Complying Proportionately’

Clearwell has released a white paper co-written with Chris Dale of the e-Disclosure Information Project.

This first in a series of white papers entitled ‘The New Practice Direction and e-Disclosure – Best Practices for Complying Proportionately’ covers developments in the management of electronic disclosure in the courts of England and Wales.

As detailed in the introduction of the paper:

Purpose of This Paper

The disclosure of electronic documents for litigation in England and Wales is not optional.  It has been treated as such in many cases, with the parties simply asserting that it is not proportionate to preserve, collect, review and disclose them.  The alternative approach, equally pernicious, has parties disclosing vast but unselective volumes in purported compliance with their obligations under Part 31 CPR.  Judges have not exerted the powers of active management given to them by the rules and receive no training aimed at equipping them to do so.

The common theme running through recent cases is the lack of information – information collected by the giving party as to its own documents, information exchanged with opponents, and information available to the court.  The result at a simple level is the unnecessary expense; more seriously, parties have suffered adverse costs orders, reputational damage and, in some cases, have actually lost the case because of disclosure failures.

There is a middle course which, on the one hand, identifies everything which is potentially disclosable and, on the other hand, enables sensible decisions to be made, and be made transparently, as to what is actually disclosed. A new Practice Direction 31B – Disclosure of Electronic Documents, provides the framework of rules.  The proper use of technology such as that provided by Clearwell Systems enables compliance with the rules in the “proportionate and cost-effective manner” which the new Practice Direction requires.

The paper explains briefly what the obligations are if properly construed, and shows how the world’s technology can be used to meet them –

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