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October 8, 2019 Insights

What We Learnt About the Disclosure Pilot
10 Months In

By: Vince Neicho

Just last week I had the pleasure of moderating a very interesting panel discussion for ACEDS UK on how the Disclosure Pilot in the UK is performing.  Hosted by Law firm RPC on behalf of ACEDS UK and sponsored by Integreon, the event attracted a broad spectrum of attendees including lawyers, barristers and eDiscovery experts.Our expert panel included Chief Master Marsh (of the judiciary) and Ed Crosse (partner at Simmons & Simmons), both of whom formed part of the Working Group responsible for the Pilot.  They were very ably joined by Lucinda Orr (partner at Enyo Law) and Charlotte Hill (associate at Pennington Manches Cooper and VP of Junior LSLA).

Although 10 months in, it is still early days to draw too many conclusions as to the Pilot’s success or otherwise.  Integreon’s Clare Chalkley, Vice President – Legal Services commented, “I am fascinated to see how the next 14 months play out and to see how the feedback shapes the future of the practice direction.  This is a work in progress but hopefully, by the end of the pilot, we will see some of the true benefits it set out to achieve”.

The Pilot is the first overhaul of the disclosure rules since the first Practice Direction to address eDisclosure was introduced in 2010 and then supplemented in 2013 by the introduction of a menu of disclosure options. Much has changed in the intervening period in terms of the volumes and types of data to be considered on disclosure exercises, so it is of necessity that the Pilot is perhaps far more prescriptive than the rules it seeks to replace and approaches the topic from a new angle.

One of the main aims of the Pilot was to move parties away from the old ‘Standard Disclosure’, which had become the norm, despite it being only one of the options available to them.  Standard Disclosure is onerous, expensive and often dis-proportionate.  For me, one of the most encouraging take-aways from the session is that there appears to be good adoption of each of the models that replaced the previous options – most of which make for a more restricted (and therefore cheaper) approach.

It appears that there is some confusion around how to construct and agree upon the newly required list of issues, against which parties will determine which disclosure model will apply.  We heard some horror stories where the excessive number of issues caused the review to be unnecessarily complex, slow and expensive.  Master Marsh reminded us that, in more than one place, the Pilot refers to the need to include ‘key’ issues.  It is not intended that the parties should seek to include an exhaustive list.

I was disappointed to hear that there appears to be minimal take up of the new ‘Disclosure Guidance Hearings’. These were hearings designed to facilitate a discussion between the parties and the judge where agreement has not been possible on aspects of the disclosure process.  For me, a key characteristic of the hearings is that the judge might hear from a legal representative with direct responsibility for the conduct of the disclosure process, rather than the usual counsel or advocate who would have to rely on his or her instructions to determine and understand the problems to be addressed.  We discussed possible reasons for the reticence.  Maybe it is  because the time allocated is too short or that the parties have not grasped the intended purpose and format of the hearings.  Personally, I would like to see the court promoting the hearings.  Perhaps, we need to separate the legal from the practical in determining whether a Disclosure Guidance Hearing is appropriate; whereby disputes over the list of disclosure issues (for example) might be appropriate for a more formal, traditional hearing, but disputes on scope, accessibility and formats of data (for example) are candidates for a Guidance Hearing.

Another key element of the Pilot is to ensure that appropriate technology is used to ensure efficiencies in the process.  Overall, there was unanimous agreement that parties are now far more tech-savvy and willing to embrace various technology solutions.  This is a pleasing and most encouraging step forward.  As I have stated before, technology forms only one leg of the three-legged stool – process and people being the other two – but we now find ourselves in an environment where we are actively utilising state of the art programmes and platforms to facilitate effective means of meeting our disclosure objectives in a world where data sizes are likely to continue to increase exponentially. If I might be forgiven for wearing my Integreon hat for one moment.  This increased adoption of technology enables ALSPs, like Integreon to practice ‘smart review’ processes, meaning that we too are able to contribute to significant cost reductions when we are instructed to carry out document reviews.

It was always acknowledged that the Pilot – and the completion of the Disclosure Review Document (“DRD”) in particular – would entail a front-loading of costs, with the expectation that the overall costs will be less in the long run. Master Marsh confirmed that he has found properly completed DRDs to be enormously helpful when preparing for hearings dealing with disclosure disputes. Importantly, he also spoke of the need for the judge to test the parties on their proposals in the DRD where appropriate and amend as necessary, rather than simply rubber-stamping their submissions.

Ed Crosse has asked the profession at large to further consider the DRD and to provide feedback with a view to improving the document.  I am pleased to say that ACEDS UK will be coordinating the effort to collect information and suggestions from eDiscovery professionals and other interested parties.  Details to be circulated shortly.

The Pilot has of course been front and central in everyone’s mind when addressing disclosure since it came into effect on 1st January this year, but Chief Master Marsh stressed the importance of keeping it all in context. He reminded us that one of the key reasons people choose our jurisdiction when forum shopping, is our ‘cards on the table’ approach to disclosure.  The Pilot does not seek to repress disclosure in any way in instances where it is necessary for the proper resolution of the case.

I opened the session with the question “is it working?”  What I heard in response, is that it IS working.  Yes, it will need fine-tuning and some aspects may need to be re-visited.  Also, as was noted, like the rules it seeks to replace, it never did claim to have all the answers, but it does appear to be encouraging a much needed positive change in culture among the parties litigating in our courts and it is now forcing legal professionals to properly consider how technology must be used to analyse and produce their documentary evidence.

This is a long road and it is not until the current cases to which the Pilot is being applied have reached their conclusion that we can assess disclosure costs and form a view as to whether they would have been greater had the Pilot not been applied. Or as I put it on the night “if the proof is in the pudding, we have only just begun our main course!”

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