Litigation Support and Electronic Disclosure
The LĩST draft documents on the use of
technology in litigation
LĩST- The Litigation Support Technology
Group
www.listgroup.org
My article
What is LĩST?
recognises
that LĩST is (and is intended to be) a forum for the
knowledgeable. This section offers a summary for those who aspire to
knowledge, preferably within five minutes or less.
LĩST's Publications page at
www.listgroup.org/publications.htm shows four "current publications".
These are:
-
LĩST
draft Technology Questionnaire (24 September 2004)
-
LĩST
draft Practice Direction for the Use of IT in Civil Proceedings (8 July
2005)
-
LĩST
Data Exchange Protocol Part 1 of 2 Disclosure Documents (15 May 2006)
-
LĩST
Data Exchange Protocol Part 2 of 2 Disclosure Data (27 April 2007)
The draft Practice Direction is a set of
rules, couched in the formal terms expected of the CPR, providing a
framework for co-operation on IT use in civil litigation.
My commentary on the
draft Practice Direction
The two-part draft Data Exchange Protocol
is intended to provide a default basis for the two components of
electronic disclosure and exchange, Disclosure Documents (electronic
files representing the actual documents) and Disclosure Data
(the information about documents - the Disclosure List in data-exchangeable
form)
My commentary on the
LiST Data Exchange protocol
The Technology
Questionnaire was a lengthy document intended to flush out at an early
stage what the document populations were, in what format the documents
existed and would be offered for exchange, and what the cost of
document-handling was likely to be. It was much trimmed following
consultation and now appears as Appendices to the draft Practice Direction.
The original, and much fuller, version remains on the
LĩST web site at
www.listgroup.org/publications.htm.
Grounds for confusion
There are three points of
clarification worth mentioning - repeating even - briefly before we look at
the detail, to head off possible confusion.
"Data Exchange" and
"Disclosure Data"
There is scope for confusion here
before we have even got beyond the headings, caused by the recurrence of the
word "data". If the major topic is "Data Exchange" why is only the second
document expressly about "Disclosure Data"?
The word "data" has no
useful synonym. In the expression "Data Exchange" it is used properly to
mean all the information - documents and information about documents -
which is exchanged on Disclosure. In the expression "Disclosure Data" it
is used more narrowly but equally properly to mean the rows and columns
of information about documents in a form which can be processed by a
computer.
The Protocol and the
Practice Direction
LiST already have a draft
Practice Direction which governs, inter alia, the exchange of Disclosure
information. Why do we need a Protocol as well?
The Practice Direction is
both wider in scope and less detailed than the Protocol. It covers the
use of IT generally in civil proceedings and includes a default
mechanism for data exchange (see above) at a level which is attainable
by almost anyone and in terms which merely codify (and are of the same
kind as) the court's general power to make orders for the better conduct
of a case.
The Protocol is much more
detailed, is more suited to larger cases, to those
who are using some form of litigation support system to manage their
case, is capable of variation to suit the circumstances
and can be modified as experience dictates in a way which is not
possible with a Court rule.
Disclosure inter
partes and Court e-filing
Confusion between these
concepts was probably what fouled up Lord Woolf's attempt to introduce
technology into the CPR, and persists even now. The Practice Direction
and the Protocol are nothing to do with e-filing. They may prove
relevant to e-filing in due course, and may help inform future decisions about
e-filing, but nothing in any of the LiST documents discussed here
requires the Courts to invest in technology.
The only thing needed on
the part of the Courts is that the managers - the Judges and Masters who
conduct procedural hearings - should understand what is involved in, and
what can be achieved by, the use of technology by the parties to civil
proceedings.
Please do not hesitate to contact me if anything
covered in this section of the web site is not clear. Not only might I be
able to answer your question, but the very fact that you have asked it may
suggest an addition or improvement to the site.
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