Lois et Réglementations
Practice Direction 2A on Disclosure and InspectionOctober, 2005
Practice Direction 2A to CPR Rule 31.4, amended in October of 2005, clarified the definition of documents that are disclosable, extending it to electronic documents that are readily accessible from computer systems and other electronic devices and media (e.g. word processing and spreadsheet files, programs and files used by the computer’s operating system.
French Data Protection Authority’s (the “CNIL”) recommendations concerning the transfer of personal data in US DiscoveryJuly, 2009
Considering the increase of US discovery procedures involving French companies, the French Data Protection Authority (the “CNIL”) issued in 2009 a deliberation No. 2009-474 containing some recommendations for the transfer of personal data in the context of American court proceedings known as Discovery. This document gives good advices on how best to respond to a discovery request while complying with the European data protection directive, the French data protection law and the French “blocking statute”.
Practice Direction 31B on the Disclosure of Electronic DocumentsOctober, 2014
Practice Direction 31B on The Disclosure of Electronic Documents came into effect on 1 October 2010 and addresses the disclosure of electronic documents in conjunction with the existing Practice Direction 2A-1, re-named 31A on Disclosure and Inspection). It applies to all cases issued after October 1, 2010 that are allocated to the multi-track process (where the amount in issue is in excess of £25,000 or the case is more complex). The previous Practice Direction (31A) continues to apply to cases issued before then. The courts do, however, have discretion to apply the provisions of Practice Direction 31B to cases issued before October 1 and to less complex cases. The purpose of the revised Practice Direction was to encourage and assist parties to reach agreement in relation to the disclosure of ESI in a proportionate and cost-effective manner.
The Practice Direction:
Enforces the common law duty to preserve evidence and introduces a litigation hold procedure.
Makes early, on-going communication between the parties compulsory. A comprehensive agenda is set out for discussion, the aim of which is help parties to agree on a sensible approach before the first case management conference, or perhaps earlier in more complex cases.
Introduces the Electronic Documents Questionnaire, which is not compulsory in all cases, but is a useful guide to e-disclosure. Parties must exchange information about the ESI in their possession.
Sets out the factors to consider to carry out a “reasonable” search for documents as required by the CPR.
Refers to the use of various technologies and best practice techniques to reduce the burden and cost of e-disclosure, which include: keyword searches, data sampling, de-duplication, and the use of a staged approach to disclosure.
CPR 31.5 on Disclosure and a new Practice Direction 3E on Cost ManagementApril, 2013
Civil Procedure Rule, CPR31.5 on Disclosure and a new Practice Direction 3E on Cost Management for managing cases and their costs, with a significant emphasis on proportionality were implemented on 1 April 2013.
Rule CPR31.5, makes provision for a menu of disclosure orders and disclosure directions, to allow for a more tailored approach in substantial cases. There is no longer a presumption in favour of standard disclosure. Instead, the court must decide which of a range of orders to make ranging from dispensing with disclosure, to issue-based to disclosure and also full-blown “train of enquiry based” disclosure in appropriate cases. In selecting an appropriate order the court will take into account the overriding objective of the rules and the need to limit disclosure to that which is necessary to deal with the case justly.
The new cost management rules set out in proposed new rules CPR rules 3.12 to 3.18 and Practice Direction 3E require parties to file and exchange budgets before the first case management conference for approval by the court. Costs are thereafter actively managed by the court within the boundaries of those approved budget. At the end of a case the successful party will be able to recover the reasonable costs of the case and when these are assessed the court will take into account the approved budget.