On 1 January 2019, a new Disclosure Pilot Scheme comes into effect in the Business and Property Courts. The pilot represents an attempt finally to kill off the zombie of default standard disclosure: the disclosure model that will not die.
Standard disclosure has survived the Jackson reforms as by far the most popular disclosure model of the Jackson “menu” of options. This is despite it being ill-suited to the large volumes of digital data which are frequently encountered in modern litigation, even in lower value cases. The current pilot has come about as a result of the growing dissatisfaction and concern amongst litigants and judges that the cost and effort of standard disclosure in the digital age can quickly become disproportionate in relation to the issues to be tried and the amounts in dispute. A significant proportion of disclosed documents are not referred to at trial.
One reason for this is that with parties and the courts under growing pressure at the case management conference (CMC), standard disclosure has been seen as the “easy” option. It has, in part, been assisted by legal technology which has allowed data volumes to grow and remain broadly manageable. However, this approach has discouraged the use of technology as a driver towards more creative approaches to disclosure. The pilot recognises these factors and aims to rebalance the presumptions surrounding disclosure with a wholesale shift in culture.
The use of legal technology runs like a golden thread through the pilot. The new practice direction creates explicit duties on parties to liaise and cooperate to promote the “reliable, efficient and cost-effective conduct of disclosure, including through use of technology” (PD 51U.3.2(3)). Parties “must discuss and seek to agree… the use of software or analytical tools, including technology-assisted review software and techniques; coding strategies… prioritisation and workflows” (PD 51U.9.6). This type of language is something of a brave new world for civil procedure.
There is a wide duty on clients to preserve documents (PD 51U.3.1), but “Initial Disclosure” (PD 51U.5) will be the starting point in many cases. This only requires parties to disclose the documents on which they rely, and which are necessary for other parties to understand the claim or defence they have to meet. There is a limit of 1,000 pages or 200 documents, unless otherwise agreed between parties.
An obligation to disclose “known adverse documents” applies throughout. This creates some interesting issues given the wide duty on clients to preserve data, which will often involve the proactive forensic collection of digital evidence. Disclosure of known adverse documents does not include a specific obligation to search (PD 51U.2.8), but it is not clear how this will operate alongside the need to locate such documents on, for example, forensic images of hard disks (where knowledge of the existence of a document does not equate to being able to find it without searching). This issue is even more acute when we consider that “known adverse documents” can (as currently) include deleted data (PD 51U.2.6).
Should the parties seek one of five categories of “Extended Disclosure” (PD 51U.8) in respect of one or more issues, they will be required to justify that decision; the pilot places emphasis on Model C (request-led, search-based disclosure) and parties seeking wider Extended Disclosure (Models D or E) are expressly required to explain why Model C is not sufficient (PD 51U.6.5). To assist this process, a new “Disclosure Review Document” (DRD) (designed to replace the current electronic documents questionnaire (EDQ)) has been created as a collaborative document to be agreed between the parties and updated throughout the process of disclosure.
Implications for legal technology
So what are the implications for legal technology? Well, Initial Disclosure still involves de-duplication and removal of privileged documents (PD 51U.5.3(3)); therefore, there is still likely to be a need for eDisclosure technology at an early stage of proceedings. Where Extended Disclosure is sought, there is also likely to be an increased need for the use of early case assessment tools, so as to bridge the gap between the wide obligation to preserve and the increasingly narrow requirement to review and produce. This will include greater testing and refinement of keywords, and therefore less keyword filtering at source (DRD 10) (which is a good thing in terms of ensuring defensibility, and making certain that relevant material is not missed). As there is also a greater emphasis on removing irrelevant documents and not only on producing relevant documents, technology is likely to play a key role (PD 51U.3.1(6)).
But for me the biggest impact is the change in tone. Given that we are only two years on from the Pyrrho Investments case, the shift in emphasis is significant. Whereas that case was the first in which the courts of England and Wales endorsed the use of predictive coding, we are now already in a situation where parties at a CMC will be required to justify why the use of such technology has not been put forward. This is a huge difference in approach, from one in which such technology was the interloper in the litigation process, to one in which it plays a fundamental part.
The DRD is a much more substantial and useful document than the EDQ, which it replaces. It is more comprehensive, clearer, and contains a very useful step-by-step guide to disclosure under the new regime. In accordance with the DRD, parties “are to” consider the full range of analytics tools available to them (DRD 2.13), and “are to” consider the use of predictive coding (DRD 2.14). Where parties have decided against the use of predictive coding, “they should set out reasoning as to why such tools will not be used”. The ongoing obligation to complete the DRD (PD 51U.10.3) requires close collaboration between technology providers as well as lawyers. Consequently, there will likely be an increase in legal negotiations and hearings where technology providers are involved. It is probable that there will be much more granular consideration of how technology will be used both pre-CMC and at CMCs, with parties needing to be prepared to justify proposals for disclosure, including by reference to the use of software tools.
All of this will only accelerate the focus in the UK eDisclosure market away from largely volume-based eDisclosure models and towards more consultancy-based business models by providers, at least for litigation disclosure. With the increased focus on costs budgeting, there will be a continuing move towards greater use of fixed fees and managed services agreements for litigation, mirroring that in the UK legal market more generally.
What does this mean for those instructing legal technology providers? There will be fewer places to hide in terms of discussing technology for those with conduct of litigation, and certainly less room for the “TBC” which is still a feature of many EDQs. My top tip would be, as ever, to involve technology providers early. We can help with a lot of what is required under the new regime, from negotiating with the other side’s providers, to drafting DRDs and attending hearings where required, and in assisting with the production of costs budgets. Seek proactive advice and strategic management of the disclosure process from your provider; look for those who will be a critical friend, who will point out potential issues with your approach and will work with you to resolve them. Make use of early case assessment and predictive coding, but seek agreement between the parties on the parameters as early as possible, so as to avoid later objections. As more proactive engagement takes place, so does the room for such challenges; we can help to not only ensure that the other side is meeting its obligations, but also to protect your position and that of your client.