At what price is ‘Access To Justice’? Taming e-disclosure via costs management by the court?
When parties are in disputes, do they think about the costs of getting their differences resolve? If they do they will think twice before going to court and/or litigate. Thinking about the costs associated with civil litigation is further aggravated with e-disclosure requirements. Also, if parties are not thinking about e-disclosure, the task has been done (in bite size – Phase 1) by the judiciary in England and Wales. The preliminary report on Civil Litigation Costs Review by Lord Justice Jackson has a chapter (15 pages) devoted to e-disclosure.
Even if you’re not interested in e-disclosure or do not want to get anywhere close to litigation or the courts, do take a look at Chapter 40. The preliminary report provides a general overview of e-disclosure (and also reviewed the Electronic Disclosure Reference Model (ERDM)?!- beware that this is not a generic framework for all e-disclosure) and also covers various costs aspects with examples of cases.
I am not sure how feedback are gathered and reviewed as the preliminary report also request for feedback. Here’s the extracted Conclusion:
8. CONCLUSION
8.1 Need to consider e-disclosure. In every substantial case where documentation is held electronically, consideration must be given to the problems involved with and the costs of e-disclosure. The electronic material may be so extensive that it is impracticable to print all documents out and then to proceed with conventional disclosure. In that event there is no alternative to e-disclosure.
8.2 Request for feedback. It would be helpful to hear from recent users concerning their experience of e-disclosure. In particular it would be helpful to hear from users whether and to what extent (a) any particular approach to e-disclosure has saved costs in particular cases and (b) conversely any approach to e-disclosure has caused wastage of costs in particular cases.
8.3 I have indicated in section 5 above some methods by which the costs of edisclosuremight be controlled. During Phase 2 I should be pleased to receive any comments on those issues. I should also welcome any other proposals for controlling disclosure costs in cases where the underlying project or transaction generated extensive electronic material. For example, if we introduce into our CPR some similar provision to FRCP rule 26(f)(3), might that help to reduce both the risks and the costs of e-disclosure (because the lawyers would be at less risk of accidentally waiving privilege)?
8.4 It would also be helpful to hear whether the costs figures supplied to me, and set out in section 6 above, accord with the experience of court users.
One would have thought that ‘Access to Justice’ in the information age would also mean access to justice. Perhaps the’ Woolf v Genn: the decline of civil justice’ debate provides more insight into the current state of civil litigation.