For more than two decades, the courts have struggled to meet the challenges posed by an ever-increasing volume of electronic documents. English litigation has long embraced a “cards on the table” approach, under which parties have to disclose documents relevant to the dispute so that the court can decide the issues from a position of knowledge, rather than ignorance. But in an age where a major dispute may throw up hundreds of thousands, if not millions, of potentially relevant documents, such an approach can lead to huge costs unless some way is found to control the process.
In seeking to reduce the costs of disclosure, the direction of travel has (understandably) been to try to limit the amount of documentation that must be reviewed and disclosed. In general terms, that was the aim of the changes to disclosure implemented by the Woolf reforms in the late 1990s, the Jackson reforms almost ten years ago, and the disclosure pilot which began in 2019 and has recently been adopted as a permanent practice direction for the Business and Property Courts (at PD 57AD).
But the court’s decision in Genius Sports Technologies Ltd v Soft Construct (Malta) Ltd bucks that trend. In that case the court ordered the “massive overdisclosure” of documents, taking the view that this would both improve the process and save costs as compared to a more traditional approach. This post considers the merits and practicalities of such an approach and concludes that, in most cases, the downsides are likely to outweigh any potential benefits.