Back in May, I covered a blog from Dr. Tristan Jenkinson (who is a digital forensics and eDisclosure expert from the UK) called The eDiscovery Channel, which is not to be confused with the YouTube channel from Tom O’Connor (and recently Rachi Messing) of the same name. This one is the English channel – no, wait, that’s a body of water! Anyway, Tristan’s eDiscovery channel blog has recently been publishing a series of blog posts about the history of eDisclosure that is rather interesting.
Tristan began his history lesson with his first post – A Time of Discovery – A History of Electronic Disclosure (Part One) – way back in July. In that first part, Tristan stated that he “thought that it would be interesting” to expand on the history of disclosure in England and Wales”. As a result, he put together an article on the history and development of electronic disclosure, but “soon discovered that there was far more than I could hope to contain in a single article, so I have created this series to talk about the history of civil disclosure, and discuss some of the main events and cases that shaped its development in the courts of England and Wales.”
In the Introduction to the series in Part One, Tristan starts with the purpose of disclosure and this explanation of the Purpose of Disclosure from Sir John Donaldson in Davies v Eli Lilly & Co  1 WLR 428, which says:
“In plain language, litigation in this country is conducted ‘cards face up on the table’. Some people from other lands regard this as incomprehensible, ‘Why’, they ask, ‘should I be expected to provide my opponent with the means of defeating me?’ The answer, of course is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object.”
Tristan then proceeds with the Rules of the Supreme Court (RSC) from way back in 1883(!) and the Peruvian Guano case from the same time period, which is the basis of the wide ranging “train of inquiry” type of disclosure that leads to the eventual new Disclosure rules that came over a century later! In the remaining parts of his six-part series, he discusses:
- Part Two: The Woolf Reforms (1996) and the implementation of the Civil Procedure Rules (1999);
- Part Three: The Cresswell Report (2005) and how the Civil Procedure Rules were amended to specifically include electronically stored data as part of disclosure;
- Part Four: Relevant case law that has occurred since the implementation of the Civil Procedure Rules (CPR) from 2007 to 2009 that has laid the foundations for how electronic disclosure should be treated;
- Part Five: The “Electronic Documents Questionnaire” (EDQ), Practice Direction 31B (PD31B), Jackson Reforms (preliminary and final reports issued in 2009) and the “Longest Speech in Legal History” (119 days(!), issued by the Bank of England’s QC, Nicholas Stadlen related to this case); and
- Part Six: The Disclosure Working Group, which was created in May 2016 by Sir Terence Etherton to investigate the perceived excessive costs, scale and complexity of disclosure in England and Wales and led to Practice Direction 51U – “The Disclosure Pilot Scheme” – which has been running since the beginning of 2019 and is now slated to run for three years (through next year, at least).
Tristan’s history is comprised of six posts over more than five months and the last couple of posts are rather detailed, but it’s a very interesting and compelling history of the evolution of eDisclosure (especially in the past 20+ years) and where it’s going. In the US, we know that the evolution of eDiscovery has included milestones such as the rules changes to the Federal Rules of Civil Procedure in 2006 and 2015. We talk about those milestones regularly, but not how eDiscovery/eDisclosure has evolved in other parts of the world, so, thanks, Tristan, for helping us to better understand how things have evolved in the UK over the past several years!
So, what do you think? Were you aware of how eDisclosure has evolved in the UK in recent years? Please share any comments you might have or if you’d like to know more about a particular topic.