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The Earles Paradox
As the judge noted in Earles, Practice Direction 31 2A (electronic disclosure) "is in the Civil Procedure Rules and those practising in the civil courts are expected to know the rules and practice them; it is gross incompetence not to". There is no point in pulling punches here. Incompetent is not a soubriquet that two international organisations wish attached to their legal practises.
Yet, one must also recognise the paradox here. The lawyers are, we can assume, both experts in their fields and highly competent in the law. So, why doesn't this expertise extend to a thorough understanding of the rules governing e-Disclosure under CPR 31? And, beyond that, to actually practising them, which is the important part. Recent cases (Digicel, Goodale, etc.) indicate an unsettling conclusion. Part 31 CPR is off the radar screen of most lawyers. But why?
The answer might very well be that e-Disclosure rules apply primarily to technology, i.e. the majority of lawyers see it as outside of their remit. If this is so (and I for one believe that it is), then there must be a closer working relationship between lawyers and the people in IT with the requisite knowledge to support them. They should, in fact, form a team, which works closely together from the inception of a case, including joint attendance at the CMC where IT experts in e-Discovery can make a valuable contribution.