Lawyers need more training on electronic disclosure, says top judge

Lord Justice Jackson, author of last year's in-depth report on legal costs in civil litigation, told a construction disputes conference in a speech (7-page / 183KB PDF) that the costs implications of incorrect electronic disclosure or inappropriate disclosure orders were potentially "huge".

Document disclosure is "one of the drivers of high costs" in litigation, Lord Justice Jackson said. As part of his final report, the judge recommended that e-disclosure form a substantial part of solicitors' and barristers' professional training, as well as part of the training of judges who would come across it in their own work.

"Even in medium-sized actions where all the documents are in paper form, disclosure can be a major exercise which generates disproportionate costs. In larger actions where the relevant documents are electronic, the problem is multiplied many times over. That problem is accentuated because relatively few solicitors and even fewer barristers really understand how to undertake e-disclosure in an effective way," he said.

The judge stressed that legal professionals now rely on third-party software consultants, who may be experts in their own particular software but may not understand the needs of a particular case.

"[Consultants] understand their own software systems, but it is the solicitors and counsel involved who best understand the case... Disclosure is not an activity which can be outsourced in its entirety to external consultants. No existing software programme is capable of achieving standard discovery," he said.

Electronic disclosure, or e-disclosure, is the process of identifying, preserving, collecting, filtering, reviewing and disclosing electronically stored information. This can include information stored on personal computers, mobile phones and memory sticks; as well as email, documents and calendar files.

Detailed provisions for electronic disclosure in civil cases were introduced in a Practice Direction to the Civil Procedure Rules (CPR) in October 2010. The Practice Direction provides that in any case where documents relevant to a case are stored electronically, the parties must consider and discuss how disclosure should be carried out at an early stage. All relevant documents must be preserved from the time when court action was first contemplated.

Andrew Herring, an expert in electronic disclosure with Pinsent Masons, the law firm behind Out-Law.com said that the Practice Direction had, to date, been "incredibly underused" particularly by smaller firms.

"It's become something of a tactical battleground – larger law firms tend to be happy to use the process, but SMEs and medium-tier firms are still engaging third-party consultants and writing that off as an additional cost of litigation," he said. "I wholeheartedly endorse any further encouragement of the use of electronic disclosure, but I do note that even larger firms also get it wrong."

In his speech Lord Justice Jackson stressed the importance of retaining the original file structure when electronic material is being examined. Some email inboxes, for example those of senior employees and decision makers, may require closer scrutiny than others, he said.

Commercial court judges have already undertaken e-disclosure training, and the Judicial College will provide training in e-disclosure for civil judges next year, Jackson said.

As part of his civil costs review, Jackson also recommended that courts choose from a menu of possible disclosure options to be set out in the CPR for large commercial claims, or other cases in which the costs of disclosure were likely to be disproportionate. Personal injury and clinical negligence claims should however be excluded from this rule.

A new rule has now been agreed to implement this 'menu option', which will come into force at the same time as the other Costs Review reforms. However, the working party which drafted the rule decided against including a clause that would have required the solicitor or other person responsible for carrying out the disclosure process from being present at the first case management conference.

The judge said that the provision was "more a matter of professional conduct than for the rules", however he stressed that the person carrying out the disclosure process should attend.

"Fundamental decisions are likely to be made about disclosure [at the case management conference]. If the person who is responsible for disclosure and understands what material exists does not attend, inappropriate costs orders may be made with drastic costs consequences for the client," he said.

The new rule will come into force at the same time as the Legal Aid, Sentencing and Punishment of Offenders Bill, which is currently going through Parliament and will implement the other elements of the reforms. This is likely to be October 2012.