6 Things You Need to Know About the U.K.’s Proposed Disclosure Change
By Vince Neicho
Stemming from a concern raised by the GC100 over the increasingly expensive cost of disclosure in commercial litigation, the proposed rule change seeks to significantly reduce a litigating party’s disclosure obligations in commercial litigation. Though the changes may, at first, sound somewhat radical, the proposal simply builds on and clarifies some of the changes first introduced by PD31B and the new Rule 31.5. Here is a quick recap of the six current proposed changes and what they mean, brought to you by our own Vince Neicho, vice president of legal services at Integreon.
Rule change #1: New models and menu of options
The new rule change focuses on the level and type of disclosure and requires that disclosure be issue-based. A party’s obligation is to provide the documents on which it has relied and “key documents that are necessary to enable the other parties to understand the case they have to meet.” There is no obligation to run any searches for documents beyond any a party has already run to prepare its statement of case. If Basic Disclosure is not appropriate, a party is able to request Extended Disclosure.
Rule change #2: Cooperation between the parties
The new rule enables the court to make “appropriate orders” for those who do not “constructively engage,” including the dismissal of the application (for the fuller) Extended Disclosure or the adjournment of the CMC with an adverse costs order.
Rule change #3: Use of technology
The working party that drafted PD31B had tools such as predictive coding and other forms of Technology Assisted Review in mind at the point of drafting. The landscape has become clearer and more established since then, so the new rule is now more precise in terms of encouraging parties to engage with specific forms of technology. There is a suggestion that TAR should be especially considered when the universe of documents is in excess of 50,000. However, there is still a reliance throughout the new rule on keyword searching.
Rule change #4: Meaning of relevance
The new rule introduces the concept of “Narrative Documents”—or documents that may not be strictly relevant based on what appears on the face of the document, but rather as background relevance or context to documents that are relevant on their face—and suggests that these need not always be disclosed.
Rule change #5: Disclosure Review Document
The Disclosure Review Document replaces the EDQ under PD31B. It is in different form, but like its (soon to be) predecessor, it seeks to procure and provide information to enable parties and the court to reach a determination as to the appropriate levels of disclosure. It promotes an issue-based approach to Extended Disclosure.
Rule change #6: Innovation – It’s not just about technology
The proposed rule specifically acknowledges the need to consider technology in the process with a view to introducing efficiencies and managing costs. However, there are of course other ways to be innovative and save costs—for example, outsourcing managed document review.
To read more on disclosure change, check out Vince’s full article in Legal IT Insider.
Vince Neicho, vice president of legal services at Integreon, is a recognized expert in e-disclosure and document management, having spent over 41 years’ at Allen & Overy, latterly as litigation support senior manager. On Feb. 7, Vince will moderate an ACEDS U.K. panel that includes the very senior judge responsible for the working party that drafted the proposed change: Lady Justice Gloster, who heads up the Court of Appeal.
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