The consortium responsible for the TCC eDisclosure protocol has just released a revised version with accompanying (extensively enhanced) guidelines, intended to be a “best practice” approach to the thorny and difficult issue of electronic disclosure in the Jackson era of civil procedure.
Andrew Haslam sets out some of the revisions to the protocol. His previous post setting out the background to the TCC eDisclosure protocol can be found here.
The new documents can be downloaded from the Technology and Construction Solicitors’ Association (TeCSA) website here.
Inclusion of worked examples
The changes reflect the feedback received from users of the approach, who in the main were happy with the protocol, but wanted more “worked examples” in the guidance notes. They have certainly got what they asked for, with the notes containing text drawn from a number of “real life” protocol documents, and in many cases showing alternative strategies and wording for various elements of the eDisclosure process.
The main document of the TCC protocol describes the approach to the exercise, with the bulk of the customisation to reflect a specific matter appearing in the six appendices:
- Location and Nature of Documents and Key Custodians
- Key Word Filter Searches and Date Ranges
- De-duplication of documents
- Process for using Computer Assisted Review or other automated review methods
- Document to be further reviewed
- Disclosure list
In a similar fashion the Guidance notes are split into two, first a document covering the body of the protocol, and then a separate set of “worked examples” for the appendices. The second document also includes a timeline diagram showing the interaction between the legal process and the stages of the EDRM model, a flowchart of the pathway to the first CMC, and checklist some 136 points to be aware of over the lifetime of a eDisclosure exercise. The previous version of this advice clocked in at 11 pages, the combined total of the new assistance is now 39 pages, a clear indication of the comprehensive explanations of all the different nuances within the processes.
The guidance commentary is split between explanations of each specific point followed by example text of the different approaches users can adopt for that specific area. So, though it is a collaborative agreement, there is still a lot of room for a knowledgeable lawyer to legitimately gain advantage in their choice of options at each stage of the process. In order to do that, practitioners will need to understand the pros and cons of the competing strategies, but the guidelines certainly will take people a long way down that path.
Andrew Haslam is an independent eDisclosure consultant who was part of the working party who produced both the original and revised versions of the protocol/Guideline. The opinions expressed in this article reflect his personal views, and not those of the TCC, TeCSA, TECBAR or SCL.