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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.
A Disclosure Working Group that was initiated in May 2016, concluded that the current disclosure rules in CPR 31 are outdated.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.
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.
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):
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.
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
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.”
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.
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”.
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:
If Narrative Documents are to be excluded, how that is to be achieved in a reasonable and proportionate way utilising:
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:
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.
Save where otherwise agreed or ordered, a party shall produce—
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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