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 While LiST's influence has declined over the years, it has recently been reinvigorated. This could facilitate more meaningful discussion between litigants regarding disclosure considerations. • USE OF TECHNOLOGY: The Practice Direction requires parties to use technology to manage documents, but it is not specific regarding what technologies should be considered. Unfortunately, many parties consider the use of keyword searches to determine documents for review and the exchange of documents as PDFs as fulfilling their obligations. More sophisticated practitioners make proper use of the vast array of technology available to assist in the process. RULE 31.5 • MENU OF OPTIONS: Traditional "standard disclosure" has been the norm. It involves a proportionate and reasonable search to identify and disclose all documents that may harm or support either the producing party's or the opposing party's case. This proved cumbersome and expensive. One of the changes introduced was to remove standard disclosure as the default. Instead, the parties and the court now have a menu of six possible options, ranging from no disclosure at all to what is effectively a "leave no stone unturned" approach. However, parties typically plan for the worst — that the opposing 29 party will push for a "leave no stone unturned" approach, thereby spurning a potential cost- savings opportunity. • DISCLOSURE REPORTS: The rule change also requires that a disclosure report be exchanged early in the proceedings. The introduction of this report has successfully ensured that parties address their data systems and infrastructure early in the process, and it complements the information sought in the Electronic Documents Questionnaire, which was introduced by the Practice Direction. The parties and the court now have a menu of six possible options, ranging from no disclosure at all to what is effectively a "leave no stone unturned" approach. The report indicates the potential scope of disclosure. It identifies the potential repositories of relevant material, the custodians whose material should be considered and the proposed filtering (through the application of date ranges and keyword searches) to sort for relevant material. The report also provides a broad estimate of costs involved in giving standard disclosure. These costs, however, are almost impossible to estimate beforehand. Parties seem to be taking a tactical approach to cost estimation, often submitting low-ball estimates designed to make the opposing party's costs appear exorbitant.