The Jackson Reforms

Among the reforms is the addition of Civil Procedure Rule 31.5A, which parties in multi-track disputes (excluding personal injury matters) must now consider in tandem with Practice Direction 31B (PD31B) governing the management of eDiscovery. As of April 1, 2013, the new rule requires parties in UK courts to undertake an early assessment of their data before the first Case Management Conference (CMC) in an effort to rein in the disproportionate costs of eDiscovery. At least two weeks in advance of this meeting, parties must submit a report to the judge outlining the details of their proposed discovery strategy and budget. At the CMC, they must be prepared to cooperate with opposing counsel to agree on an approach to discovery. From the CMC forward, the court will have the power to cast the deciding vote on all aspects of discovery, including budgets, strategies, and methodologies. Once the rule is in effect, H.H. Judge Simon Brown believes “[t]he days of turning up at a [CMC), agreeing [to] standard disclosure, expecting the judge to rubber stamp such an order, and then starting on an unknown voyage of discovery will be over.”

Although U.S. companies confront the challenges of managing data daily, those doing business in the UK must now abide these more stringent reforms, as they will play a significant role in any cross-border litigation. Instead of treating discovery as an afterthought, U.S. counsel will be required to take a holistic view of a matter and chart the impact of eDiscovery on budget and case strategy from start to finish. These reforms also shed light on methods U.S. counsel may want to adopt as they work with opposing counsel to manage a universal concern: balancing the extravagant costs of eDiscovery with litigation needs.

Key Changes in Civil Procedure Rule 31.5A

The concepts that discovery should be proportionate and meet the “overriding objective” of litigation are not new. But until now, the lack of a clear definition of proportionality, coupled with burgeoning data stores, has made meeting these goals difficult. These are the challenges Rule 31A.5 is designed to address.

According to Lord Jackson, the overarching theme of the eDiscovery rule is ensuring that parties are adequately prepared for their first CMC so the judge can give the appropriate “directions which will focus the factual evidence, the expert evidence and the disclosed documents on the real issues.” Therefore, Judge Brown believes that “[t]hose who prepare their strategy for the case at the outset and carefully budget for disclosure in collaboration with their opponents well before the CMC will get their budgets approved and those firms will not only survive Big Bang but they will thrive after it.”

To guide their internal and external discussions about eDiscovery, parties can use the Electronic Documents Questionnaire appended to PD31B. The Questionnaire sets the stage for gathering the knowledge required to facilitate the discussion of the appropriate limitations on the scope of discovery and the expense and burden of collecting, reviewing, and producing data. Furthermore, while the Questionnaire encourages each party to undergo a self-assessment, it also asks that each party set discovery expectations for opposing parties. Then, under Rule 31.5A(3), parties must meet to discuss their discovery plans. Afterward, and at least two weeks before the first CMC, parties must develop a report for submission to the court that does the following:

1. Describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;
2. Describes where and with whom those documents are or may be located (and in the case of electronic documents how the same are stored; in cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report);
3. Estimates the broad range of costs that could be involved in giving standard discovery in the case, including the costs of searching for and disclosing any electronically stored documents; and
4. States which of the directions under (4) or (5) below are to be sought.

Based on information the parties share in the report and in the conference, the judge will choose a discovery order from a new menu of possible discovery orders in Rule 31.5A(4)(a)-(f):

1. An order dispensing with discovery;
2. An order that a party disclose the documents on which it relies, and at the same time request any specific discovery it requires from any other party;
3. An order that directs, where practical, the discovery to be given by each party on an issue by issue basis;
4. An order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;
5. An order that a party give standard discovery; and
6. Any other order in relation to discovery that the court considers appropriate.

The catchall provision in subsection (f) is particularly interesting. Lord Justice Jackson contemplates that courts will use this subsection to order litigants to turn over the “key to the warehouse,” meaning each party must share its entire document collection with the opposing party. The receiving party can then review the documents and select which documents best support its case. Before sharing the documents, the parties can review them for privilege; additionally, the court can issue an order that the discovery of privileged documents will not serve as a waiver.

Rule 31.5A(5) gives the court control over discovery throughout the matter and sets forth the areas where the judge may offer direction:

1. What searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;
2. Whether lists of documents are required;
3. How and when the discovery statement is to be given;
4. In what format documents are to be disclosed (and whether any identification is required);
5. What is required in relation to documents that once existed but no longer exist; and
6. Whether discovery shall take place in stages.

Leveraging eDiscovery Technology to Minimize Risks

To comply with Rule 31.5A, parties must adopt tools and methodologies that allow them to set a reasonable scope and budget without undertaking the complete eDiscovery process. For example, companies must prepare a data map that will help them locate the sources of responsive information early in a matter. Without this basic knowledge of their electronic resources and data repositories, parties will not be able to construct a realistic budget. Inaccurate budgeting may invite judicial intervention and, when the projected budget is exceeded, a party may not be able to recover the overage.

Moreover, with review accounting for almost 75% of total eDiscovery costs according to a recent study by RAND, using technology to streamline data collections is in parties' best interests. To winnow data sets within the required time frame, parties must go beyond standard culling tools, such as keyword searching and deduplication, and rely on emerging technologies, such as early case assessment, data sampling, and technology-assisted review, which can rapidly deliver insight into a data collection.

Early case assessment uses analytics to evaluate large data sets. For example, data can be searched and filtered by content, custodian, and file type, size, and date. This tool can help parties focus in on the most important data as quickly as possible.

Data sampling pre-processes data to determine the likely scope and cost of the full eDiscovery exercise. This approach provides powerful analytics and visual aids to help locate the most relevant data before commencing full processing.

Technology-assisted review (TAR) identifies and prioritizes the documents that are most likely to be relevant. In this process, senior lawyers review and code a seed set of documents for responsiveness and privilege. The technology engine then extrapolates the human input from the subset across the entire data population.

Conclusion

Under the Jackson Reforms, lawyers will be held accountable for thoroughly understanding the best practices that support discovery. In this environment of heightened scrutiny and enforcement, parties that do not demonstrate a full command of their data and eDiscovery resources will likely fail to obtain support from the opposing party and judge for the budget and process they seek; moreover, they also assume a greater risk of adverse judgments and cost orders.

The effects of these reforms will be felt well beyond the UK's borders. Given the breadth of the reforms, it would be prudent for U.S. companies engaged in UK litigation to involve local eDiscovery experts to help them navigate the nuances of the changes as well as implement the best practices that will evolve as the reforms go into effect. The most progressive companies will use the right mix of technology, processes, and people to achieve the most cost-effective solution to address the changing rules surrounding their UK litigation.

Michael Flanagan is General Counsel for Consilio and works in its Washington, DC, office. He can be contacted at [email protected]. Adrian White is a Senior Consultant for Consilio, resident in the London, UK, office. He can be contacted at [email protected].

'

'

It is ironic that the “Big Bang” ' otherwise known as the day UK Lord Justice Jackson's case management and litigation cost reforms became effective ' took place on April Fools Day, because these reforms are no joke. In fact, they are the most earth-shattering developments in recent UK civil procedure history, with serious ramifications that extend across the pond to U.S. companies. Failing to meet the new timelines the reforms set forth for eDiscovery (eDisclosure in the UK) can have disastrous consequences: it can destroy transparency, ruin efforts to cooperate with opposing counsel, damage a party's relationship with the court, and thwart the recovery of costs.

eDiscovery Changes

Driving the eDiscovery changes is the overwhelming volume of information that results from the ever-accelerating rate of data creation and the ease of storing data indefinitely. As Lord Jackson noted in the lectures supporting the changes, compounding this problem is that “relatively few solicitors and even fewer barristers really understand how to undertake e-disclosure in an effective way.” Lord Jackson's commentary echoes the sentiments of numerous U.S. federal court judges, who lament the lack of cooperation and proportionality in eDiscovery. But while U.S. courts generally lack the teeth required to enforce these standards until something goes awry in the discovery process, the new UK rule gives courts control from the inception of a case.

Among the reforms is the addition of Civil Procedure Rule 31.5A, which parties in multi-track disputes (excluding personal injury matters) must now consider in tandem with Practice Direction 31B (PD31B) governing the management of eDiscovery. As of April 1, 2013, the new rule requires parties in UK courts to undertake an early assessment of their data before the first Case Management Conference (CMC) in an effort to rein in the disproportionate costs of eDiscovery. At least two weeks in advance of this meeting, parties must submit a report to the judge outlining the details of their proposed discovery strategy and budget. At the CMC, they must be prepared to cooperate with opposing counsel to agree on an approach to discovery. From the CMC forward, the court will have the power to cast the deciding vote on all aspects of discovery, including budgets, strategies, and methodologies. Once the rule is in effect, H.H. Judge Simon Brown believes “[t]he days of turning up at a [CMC), agreeing [to] standard disclosure, expecting the judge to rubber stamp such an order, and then starting on an unknown voyage of discovery will be over.”

Although U.S. companies confront the challenges of managing data daily, those doing business in the UK must now abide these more stringent reforms, as they will play a significant role in any cross-border litigation. Instead of treating discovery as an afterthought, U.S. counsel will be required to take a holistic view of a matter and chart the impact of eDiscovery on budget and case strategy from start to finish. These reforms also shed light on methods U.S. counsel may want to adopt as they work with opposing counsel to manage a universal concern: balancing the extravagant costs of eDiscovery with litigation needs.

Key Changes in Civil Procedure Rule 31.5A

The concepts that discovery should be proportionate and meet the “overriding objective” of litigation are not new. But until now, the lack of a clear definition of proportionality, coupled with burgeoning data stores, has made meeting these goals difficult. These are the challenges Rule 31A.5 is designed to address.

According to Lord Jackson, the overarching theme of the eDiscovery rule is ensuring that parties are adequately prepared for their first CMC so the judge can give the appropriate “directions which will focus the factual evidence, the expert evidence and the disclosed documents on the real issues.” Therefore, Judge Brown believes that “[t]hose who prepare their strategy for the case at the outset and carefully budget for disclosure in collaboration with their opponents well before the CMC will get their budgets approved and those firms will not only survive Big Bang but they will thrive after it.”

To guide their internal and external discussions about eDiscovery, parties can use the Electronic Documents Questionnaire appended to PD31B. The Questionnaire sets the stage for gathering the knowledge required to facilitate the discussion of the appropriate limitations on the scope of discovery and the expense and burden of collecting, reviewing, and producing data. Furthermore, while the Questionnaire encourages each party to undergo a self-assessment, it also asks that each party set discovery expectations for opposing parties. Then, under Rule 31.5A(3), parties must meet to discuss their discovery plans. Afterward, and at least two weeks before the first CMC, parties must develop a report for submission to the court that does the following:

1. Describes briefly what documents exist or may exist that are or may be relevant to the matters in issue in the case;
2. Describes where and with whom those documents are or may be located (and in the case of electronic documents how the same are stored; in cases where the Electronic Documents Questionnaire has been exchanged, the Questionnaire should be filed with the report);
3. Estimates the broad range of costs that could be involved in giving standard discovery in the case, including the costs of searching for and disclosing any electronically stored documents; and
4. States which of the directions under (4) or (5) below are to be sought.

Based on information the parties share in the report and in the conference, the judge will choose a discovery order from a new menu of possible discovery orders in Rule 31.5A(4)(a)-(f):

1. An order dispensing with discovery;
2. An order that a party disclose the documents on which it relies, and at the same time request any specific discovery it requires from any other party;
3. An order that directs, where practical, the discovery to be given by each party on an issue by issue basis;
4. An order that each party disclose any documents which it is reasonable to suppose may contain information which enables that party to advance its own case or to damage that of any other party, or which leads to an enquiry which has either of those consequences;
5. An order that a party give standard discovery; and
6. Any other order in relation to discovery that the court considers appropriate.

The catchall provision in subsection (f) is particularly interesting. Lord Justice Jackson contemplates that courts will use this subsection to order litigants to turn over the “key to the warehouse,” meaning each party must share its entire document collection with the opposing party. The receiving party can then review the documents and select which documents best support its case. Before sharing the documents, the parties can review them for privilege; additionally, the court can issue an order that the discovery of privileged documents will not serve as a waiver.

Rule 31.5A(5) gives the court control over discovery throughout the matter and sets forth the areas where the judge may offer direction:

1. What searches are to be undertaken, of where, for what, in respect of which time periods and by whom and the extent of any search for electronically stored documents;
2. Whether lists of documents are required;
3. How and when the discovery statement is to be given;
4. In what format documents are to be disclosed (and whether any identification is required);
5. What is required in relation to documents that once existed but no longer exist; and
6. Whether discovery shall take place in stages.

Leveraging eDiscovery Technology to Minimize Risks

To comply with Rule 31.5A, parties must adopt tools and methodologies that allow them to set a reasonable scope and budget without undertaking the complete eDiscovery process. For example, companies must prepare a data map that will help them locate the sources of responsive information early in a matter. Without this basic knowledge of their electronic resources and data repositories, parties will not be able to construct a realistic budget. Inaccurate budgeting may invite judicial intervention and, when the projected budget is exceeded, a party may not be able to recover the overage.

Moreover, with review accounting for almost 75% of total eDiscovery costs according to a recent study by RAND, using technology to streamline data collections is in parties' best interests. To winnow data sets within the required time frame, parties must go beyond standard culling tools, such as keyword searching and deduplication, and rely on emerging technologies, such as early case assessment, data sampling, and technology-assisted review, which can rapidly deliver insight into a data collection.

Early case assessment uses analytics to evaluate large data sets. For example, data can be searched and filtered by content, custodian, and file type, size, and date. This tool can help parties focus in on the most important data as quickly as possible.

Data sampling pre-processes data to determine the likely scope and cost of the full eDiscovery exercise. This approach provides powerful analytics and visual aids to help locate the most relevant data before commencing full processing.

Technology-assisted review (TAR) identifies and prioritizes the documents that are most likely to be relevant. In this process, senior lawyers review and code a seed set of documents for responsiveness and privilege. The technology engine then extrapolates the human input from the subset across the entire data population.

Conclusion

Under the Jackson Reforms, lawyers will be held accountable for thoroughly understanding the best practices that support discovery. In this environment of heightened scrutiny and enforcement, parties that do not demonstrate a full command of their data and eDiscovery resources will likely fail to obtain support from the opposing party and judge for the budget and process they seek; moreover, they also assume a greater risk of adverse judgments and cost orders.

The effects of these reforms will be felt well beyond the UK's borders. Given the breadth of the reforms, it would be prudent for U.S. companies engaged in UK litigation to involve local eDiscovery experts to help them navigate the nuances of the changes as well as implement the best practices that will evolve as the reforms go into effect. The most progressive companies will use the right mix of technology, processes, and people to achieve the most cost-effective solution to address the changing rules surrounding their UK litigation.

Michael Flanagan is General Counsel for Consilio and works in its Washington, DC, office. He can be contacted at [email protected]. Adrian White is a Senior Consultant for Consilio, resident in the London, UK, office. He can be contacted at [email protected].

'

'