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Examining the Disclosure Pilot Scheme

disclosure pilot scheme

Disclosure pilot scheme launches with the intent of improving eDisclosure.

To assist in remediating widespread concerns that the cost of disclosure remains disproportionately high, the Civil Procedure Rule Committee has approved a new Practice Direction, which sets down rules for a mandatory disclosure pilot scheme.

Commencing from January 2019, the scheme will run for a two-year period across the Business and Property Courts in England and Wales. The intent of the disclosure pilot scheme is to drastically reduce the time and costs associated with the current standard disclosure process by offering multiple disclosure options. The success of the new disclosure pilot scheme will also determine whether wider reforms will take place beyond the Business and Property Courts and outreach to the County Courts.

Origination of the Disclosure Pilot Scheme

A Disclosure Working Group that was initiated in May 2016, concluded that the current disclosure rules in CPR 31 are outdated. They were originally designed for paper disclosure and are no longer adequate when dealing with the vast amounts of data within electronic disclosure. Standard Disclosure also commonly excessive in scale, complexities and litigation costs.

With the expert guidance and scrutiny from judges, lawyers and representatives of professional associations, an entirely new disclosure framework was devised. The new Rule and Practice Direction was approved by the Civil Procedure Rule Committee on 13 July 2018.

What changes to disclosure have been implemented?

Standard disclosure has been discarded and will no longer be the default option. In its place is a menu of specific options (also referred to as ‘models’) to be ordered by reference to the particular issues in a case. Prior to the Case Management Conference (CMC), the opposing parties will now need to complete a joint Disclosure Review Document (DRD), which will replace the current Electronic Disclosure Questionnaire. It will list the key issues in the case which require disclosure and allow parties to exchange proposals for “Extended Disclosure”, including which Disclosure Models apply to each specific issue.

The DRD process also allows opposing parties to share practical information, such as how documents are stored, how searches might be undertaken and how the document review process should be executed. Parties and their lawyers will be under an express duty to cooperate and engage before the CMC in order to promote reliable, timely and cost-effective disclosure. At the CMC, the Court will proactively determine which of the five disclosure models (Models A to E) is appropriate to each issue requiring Extended Disclosure.

The Extended Disclosure Models

Extended Disclosure may take the form of one or more of the Disclosure Models set out below. There is no presumption that a party is entitled to Extended Disclosure, and in particular Model E disclosure will only be ordered “in an exceptional case” with justification from the parties in a specific section of the DRD.

The court may order that Extended Disclosure be given using different Disclosure Models for different Issues for Disclosure in the case. In the interests of avoiding undue complexity the court will rarely require different Models for the same set of documents. The court may also order that Extended Disclosure be given by only one party, or that different Models are to apply to each party’s Disclosure on a particular Issue for Disclosure.

Model A: Disclosure confined to known adverse documents

The court may order that the only disclosure required in relation to some or all the Issues for Disclosure is of known adverse documents.

Model B: Limited Disclosure

The court may order the parties to disclose (where and to the extent that they have not already done so by way of Initial Disclosure, and without limit as to quantity):

  • The key documents on which they have relied (expressly or otherwise) in support of the claims or defences advanced in their statement(s) of case; and
  • The key documents that are necessary to enable the other parties to understand the claim or defence they have to meet;
  • A party giving Model B Disclosure is under no obligation to undertake a search for documents beyond any search already conducted for the purposes of obtaining advice on its claim or defence or preparing its statement(s) of case.

Model C: Request-led search-based disclosure

The court may order a party to give disclosure of particular documents or narrow classes of documents relating to a particular Issue for Disclosure, by reference to requests set out in or to be set out in Section 1B of the Disclosure Review Document or otherwise defined by the court.

If the parties cannot agree on disclosure pursuant to a request, then the requesting party must raise the request at the case management conference. The court will determine whether the request is reasonable and proportionate and may either order the disclosing party to search for the documents requested, refuse the request, or order the disclosing party to search for a narrower class of documents than that requested. Any appropriate limits to the scope of the searches to be undertaken will be determined by the court using the information provided in the Disclosure Review Document.

Model D: Narrow search-based disclosure, with or without Narrative Documents

Under Model D, a party shall disclose documents which are likely to support or adversely affect its claim or defence or that of another party in relation to one or more of the Issues for Disclosure.

  • Each party is required to undertake a reasonable and proportionate search in relation to the Issues for Disclosure for which Model D disclosure has been ordered.
  • Any appropriate limits to the scope of the searches to be undertaken will be determined by the court using the information provided in the Disclosure Review Document.
  • The order should specify whether a party giving Model D disclosure is to search for and disclose Narrative Documents. If the order does not so specify, Narrative Documents should not be disclosed.

Model E: Wide search-based disclosure

A party shall disclose documents which are likely to support or adversely affect its claim or defence in relation to one or more of the Issues for Disclosure or which may lead to a train of inquiry which may then result in the identification of other documents for disclosure

  • Model E is only to be ordered in an exceptional case.
  • Each party is required to undertake a reasonable and proportionate search in relation to the Issues for Disclosure for which Model E Disclosure has been ordered. The scope of the search will be determined by the court using the information provided in the Disclosure Review Document and is likely to be broader than that ordered for Model D Disclosure.
  • Narrative Documents must also be searched for and disclosed, unless the court otherwise orders.

Disclosure Pilot Scheme Criticism

There is no doubt that an increased use of technology (such as the Relativity online review platform) will be required to effectively manage the revised disclosure model requirements. However, there is some associated concern that the increased complexity across the new disclosure standards will increase costs, particularly in larger cases.

The Law Society responded to the Disclosure Working Groups proposal in early 2018 with some valid concerns:

“We have expressed some concern that perceived issues relating to disclosure may exist only in high value commercial litigation. With that in mind we have suggested that the working group may wish to consider whether there are existing powers the court could exercise in relation to disclosure. We have proposed that the working group limit the pilot to complex cases of over £500,000. We have also suggested the pilot is not appropriate for certain types of case, such as Contentious Probate or Trusts of Land and Appointment of Trustees Act (ToLATA) claims. We have expressed a view that the courts are already overburdened. The proposals will require additional court time and judicial resource. This may be of some concern as it is likely to lead to delays.”

Technology elements within the Disclosure Pilot Scheme

The disclosure pilot scheme places emphasis on how to consider the use of technology will help to promote a cost-effective, proportionate approach to the disclosure process. The following extracts are taken from the body of the new Practice Direction. They highlight specific electronic disclosure elements that CYFOR are expertly placed to assist with.

Cost-effective Electronic Disclosure

Legal representatives owe an express duty to the court to

“liaise and cooperate with the legal representatives of the other parties to the proceedings (or the other parties if they do not have legal representatives) so as to promote the reliable, efficient and cost-effective conduct of disclosure, including through use of technology”.

Section 9.6: Electronic Disclosure Searches

Where a search-based Disclosure Model is ordered, the parties must discuss and seek to agree, and the court may give directions, on the following matters with a view to reducing the burden and cost of the disclosure exercise:

The scope of the searches which the disclosing parties are required to undertake be limited to:

  • Particular date ranges and custodians of documents;
  • Particular classes of documents and/or file types;
  • Specific document repositories and/or geographical locations;
  • Specific computer systems or electronic storage devices;
  • Documents responsive to specific keyword searches, or other automated searches (by reference, if appropriate, to individual custodians, creators, repositories, file types and/or date ranges, concepts);

If Narrative Documents are to be excluded, how that is to be achieved in a reasonable and proportionate way utilising:

  • Software or analytical tools, including technology assisted review software and techniques;
  • Coding strategies, including to reduce duplication.
  • Prioritisation and workflows.

Section 9.7: Making an order for Extended Disclosure

Paragraph 9.7 states that in making an order for Extended Disclosure, the court may include any provision that is appropriate including provision for all or any of the following:

  • Requiring the use of specified software or analytical tools;
  • Identifying the methods to be used to identify duplicate or near-duplicate documents and remove or reduce duplicate documents;
  • Requiring the use of data sampling;
  • Specifying the format in which documents are to be disclosed;
  • Identifying the methods that the court regards as sufficient to be used to identify privileged documents and other non-disclosable documents;
  • Requiring the use of a staged approach to the disclosure of electronic documents;
  • Excluding certain classes of document from the disclosure ordered.

Parties need to be able to explain the benefits of what they propose in terms of technology. This ensures that judges have the necessary information required to assess what is the appropriate disclosure order.

Section 13: Production of documents

Save where otherwise agreed or ordered, a party shall produce—

  • Disclosable electronic documents to the other parties by providing electronic copies in the documents’ native format, in a manner which preserves metadata; and
  • Disclosable hard copy documents by providing scanned versions or photocopied hard copies.
  • Electronic documents should generally be provided in the form which allows the party receiving the documents the same ability to access, search, review and display the documents (including metadata) as the party providing them.
  • A party should provide any available searchable OCR versions of electronic documents with the original, unless they have been redacted. If OCR versions are provided, they are provided on an “as is” basis, with no assurance to the other party that the OCR versions are complete or accurate.

Relativity Online Document Review

CYFOR invest heavily in the latest online document review platforms. This ensures every stage of the eDisclosure life-cycle and Electronic Discovery Reference Model (EDRM) is catered for, in line with client expectations during the disclosure process. Our advanced end-to-end document review platform is Relativity, which features a full range of advanced data analytics and search technology. This allows for the effective management of vast amounts of electronically stored information (ESI) during electronic disclosure, improving efficiency, while reducing time and costs. These capabilities are in-line with the requirements of the new models under the new disclosure pilot scheme.

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