publication of the International Legal Technology Association
Issue link: https://epubs.iltanet.org/i/518940
ILTA WHITE PAPER: MAY 2015 WWW.ILTANET.ORG E-DISCOVERY/E-DISCLOSURE IN THE EU DISCOVERY VERSUS DISCLOSURE The U.S. term "discovery" includes depositions, interrogatories, requests for admissions, requests for production of things beyond data (e.g., the car in an auto accident case) and more. While witness statements, interim applications and so on are also present in the English legal system, they do not form part of English "disclosure," which is limited to the exchange of potentially relevant documents between parties. In disclosure, one party is providing its documents to the other, whereas in discovery one party is usually requesting documents from the other. We expect these two approaches eventually to blend into one as an efficient means of dealing with the growing volume of documents. There is no European legal system. As independent countries, member states have their own laws and procedures. PRACTICE DIRECTION 31B: The Practice Direction introduced a court expectation that parties would cooperate throughout the disclosure process and that technology would be used to manage documents efficiently. It also requires parties to exchange disclosed documents in native format where practicable. • COOPERATION: Cooperation in what is traditionally an adversarial environment is a difficult concept for many litigants to grasp, and there is a long way to go before parties engage the guidance of the Practice Direction meaningfully. Experience tells us that some litigants and their law firms simply fail to respond to invitations requesting a dialogue on disclosure issues while others construe the rule as meaning they can discharge their obligation by writing a lengthy letter setting out how they will approach disclosure. Neither option is acceptable. Digicel v Cable & Wireless (2008) speaks to the need to cooperate. There has been advocacy in its support, but it will probably take a more forceful penalty before litigants and advisors sit up and take notice. Before introducing the Practice Direction, England's LiST Group (the Litigation Support Technology Group: www.listgroup.org), an industry think tank comprising litigation support professionals from most of the major English law firms and legal departments, had advocated for cooperation. It is also worth noting that while data volumes in English and Welsh litigation are undoubtedly increasing, they are still far smaller than those typically seen in American proceedings. This is by design: In English proceedings, disclosure takes place later in the process — after the close of pleadings. The issues have crystallized by the time the parties trawl through their respective systems looking for potentially relevant documents. RECENT TRENDS Two of the most significant events for English legal proceedings in recent years have been the introduction to the Civil Procedure Rules of Practice Direction 31B, which deals with disclosure of electronic documents (October 2010), and the amendment to Rule 31.5 of the Civil Procedure Rules on civil litigation costs (April 2013). Some important elements are below: 28