CONSULTING
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DIGITAL FORENSICS
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E-DISCLOSURE
LEGAL NEWS Issue 7
www.cclgroupltd.com
PROPORTIONALITY ACROSS THE POND
There is a distinct American theme that runs throughout the entire e-disclosure market, from the actual software to the EDRM, the marketing messages of the major vendors, and the current discussion around predictive coding or technology-assisted review, all the way to the e-discovery Vs e-disclosure debate. Litigators, software vendors, judges and service providers over here, in the UK, have long looked to the States, whether for direction, inspiration or an appreciation of current e-disclosure trends, pressures and advances. So, how relevant is the American experience to us? What is different about the way litigators in the States deal with e-disclosure, and what are the similarities? Over the last couple of months the differing approaches to e-disclosure on both sides of the Atlantic seem to be slowly converging closer together. For the purposes of this particular article, the focus is on e-disclosure during litigation rather than an investigation; the approach to e-disclosure during a multi-jurisdictional FCPA or Bribery Act investigation, or a financial investigation involving the SEC and the FCA will be very different, and perhaps warrants a future article in itself. The Jackson Reforms in England and Wales have seen us adopt our own version of the American-style ‘meet and confer’ under Rule 26(f) of the Federal Rules on Civil Procedure. Rule 8 of Practice Direction 31B, which works in conjunction with Jackson’s new Rule 31.5A, places an obligation upon litigators to discuss, either by telephone or meeting, an approach to disclosure that meets the overriding objective, not less than seven days before the first case management conference. However, we are not yet seeing the drawn-out challenges on admissibility in this country, which are quite commonplace in the States.
IN THIS E
DITION.. .
> Propo rtion the Pond ality across > Thou ghts for th e month > Keyw ord searc hing > CCL’s e-disclosu re tools > Law 2 .0 > Voice processin g > Abou t CCL > CCL’s readiness courses
In a twist of irony, where Lord Justice Jackson seems to have taken the lead from the States on this issue, the States seem to be taking the lead from Jackson on proportionality. The Advisory Committee on the Federal Rules of Civil Procedure has recommended a narrowing of the broad scope that is currently within Rule 26(b)(1), which currently allows for ‘discovery of any non-privileged material that is relevant to any party’s claim or defense.’ The suggested inclusion of ‘and proportional to the needs of the case considering the amount in controversy’ seems strikingly similar to the new Rule 44.3(5) under the CPR in England and Wales, which outlines five factors to be taken into account when considering whether costs incurred are proportionate to the case. Minnesota’s amended Rules, which came into effect on 1st July 2013, already limit discovery with the caveat ‘must comport with the factors of proportionality.’ Further, where the existing Rule 1 mirrored its federal counterpart, in that it required the rules to be ‘construed and administered to secure the just, speedy and inexpensive determination of every action’, the amended Rule obliges courts and parties to ‘examine each civil action to assure that the process and costs are proportionate to the amount in controversy and the complexity and importance of the issues.’ This puts proportionality into the spotlight and ensures that proportionality, rather than defensibility, is the guiding principle. Both the Minnesota amendments and the mooted changes to the Federal Rules also introduce sanctions for parties that fail to cooperate in framing a disclosure strategy. Add into the mix the changing goalposts in both jurisdictions as far as the duty to preserve is concerned, whether it is the point at which the duty bites or the actual extent of preservation, and it seems that both jurisdictions are learning from each other.
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