Proposed disclosure change: Much ado about something?

As a member of the Working Group that drafted the existing eDisclosure Practice Direction PD31B and its accompanying Electronic Documents Questionnaire, Integreon’s vice president of legal services, Vince Neicho, gives his initial thoughts on the proposed rule change.
The genesis of this rule change was a concern raised by the GC100 over the ever-increasing cost of disclosure in commercial litigation. The result is a proposal that seeks to reduce radically a litigating party’s disclosure obligations in commercial litigation. However, it is important that a sensible balance be struck.  Many litigants outside of those 100 mammoths will have a very different perspective. They will (often properly) be relying on the bigger company’s disclosure to provide evidence to substantiate their claims.  Not fishing as such, but recognising that, in all probability, it is more likely that the bigger companies will have the all-important data repositories from which to produce relevant material.
I am also of the view that, when forum shopping, potential litigants choose our jurisdiction because of its “cards on the table” approach to litigation.  If that long-standing principle is removed or diluted, and parties find themselves in a situation where the starting point is not too dis-similar from the requirements of a number of Civil Code countries, it may be that England & Wales will lose out to other jurisdictions.  When we hear, for example, Frankfurt courts are gearing up for a post-Brexit push for attracting potential litigants to their legal system, this is not something to be taken lightly.
The proposed changes are designated as a pilot. As it covers “the majority of cases proceeding in the Business and Property Courts” and last for two years, it may well constitute one of the widest pilots you are likely to see.
What’s new?
Well, there are certainly changes here and many are undoubtedly for the good. However, when one digs beyond the language, the changes may not be as radical as they first appear. Overall, the proposed changes appear to build on and clarify some of the ground-breaking changes first introduced by PD31B and the new Rule 31.5 (brought in after the Jackson Reforms).
If the rule appears to have undue focus on the need to produce adverse or unhelpful documents, that is because in its earlier life, the draft more or less gifted producing parties the opportunity to suppress unhelpful documents. Thankfully, this has now been addressed.
New models and menu of options
The biggest innovation of the new rule is to change the focus on the level and type of disclosure that might be appropriate and to require that disclosure is very much issue-based.  It seeks to establish the new “norm” as Basic Disclosure.  Here, 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.  In cases where Basic Disclosure is not appropriate, a party is able to request Extended Disclosure, based on one of five models, ranging from an order dispensing with disclosure, through to train of enquiry-type disclosure.  Parties are encouraged to mix and match the models to each of the issues.  The proposed rule has done a good job of highlighting the need to consider seriously a more focused approach, rather than simply sticking with something akin to Standard Disclosure, but at the end of the day, all of the proposed options were already available in Rule 31.5.  If the rule change results in more cases veering away form a default of what we now know as Standard Disclosure, it will mark a major achievement
Cooperation between the parties
PD31B and Rule31.5 were clear on the need for inter-party cooperation, but in my experience, compliance by parties and their law firms in the heat of battle has been sketchy at best.  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.  What if the party refusing to cooperate is the party opposing the application?  Is a costs sanction a sufficient deterrent? It would be good to see tougher sanctions for those who blatantly refuse to engage meaningfully in the process.  It would also be good to see judges taking a more active case management role in dealing with disclosure. There is mention that they should not simply rubber-stamp what the parties may propose, but I would like to see more emphasis on expectations that judges must understand the options available to parties and adjudicate accordingly, which takes us back to the age-old question of what training might be available to them.
Use of technology
PD31B broke new ground in expecting parties to use technology in the disclosure process. The working party that drafted it very much had in mind at the point of drafting, tools such as predictive coding and other forms of Technology Assisted Review.  The landscape has become clearer and more established in the intervening years, such that the new rule is now able to more precise in terms of encouraging parties to engage with specific forms of technology. However, it appears that there is confusion as to terminology.  As we have seen in practice, many use the terms “predictive coding and TAR” inter-changeably, when in fact, predictive coding is just one instrument in the TAR toolbox.  There is a suggestion that TAR should be considered particularly when the universe of documents is in excess of 50,000.  Many would say that it is good practice to utilise some elements of TAR (email threading and de-duplication for example) whatever the size of the document set.
Also, sadly, there is still a reliance throughout the new rule on that blunt instrument we know as keyword searching.  If keywords are to remain a main-stay in the identification process, it would be helpful if parties were obliged to understand what documents their adversaries are seeking to locate and to construct searches accordingly, rather than to run a list of keywords, that are all too often poorly constructed and so prescriptive that they miss the very documents they are seeking.
Meaning of relevance
If read literally, the existing rule was clear on what constituted a “relevant” document.  However, over time, the majority of documents that fell to be disclosed were not strictly relevant based on what appeared on the face of the document, but rather were included as they gave background relevance or context to those documents that were relevant on their face.  The new rule introduces the concept of “Narrative Documents” and suggests that these need not always be disclosed.  Perhaps the proposed rule should expressly state that, where Narrative Documents are necessary to provide context for relevant documents, these must be produced.
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.  When prompting parties to consider specific potential pools of evidence, it is perhaps a shame that it does not also include specific references to personal devices and social media – both are often over-looked as pools of potentially useful evidence.  In the Guidance section of the document, in correctly reminding the parties of the need to preserve meaningful metadata when working with electronic documents, the document goes too far in suggesting that the documents need to be collected forensically.  It is possible to have a sound, full and complete collection, without it complying with “forensic” criteria.  As worded, it is possible that many judges will be persuaded that a full forensic collection is anticipated by the rules every time, when in fact, a careful collection that preserves metadata may be perfectly adequate.
Innovation – It’s not just about technology!
In these days of Artificial Intelligence and innovative technology, it is pleasing that the proposed rule specifically acknowledges the need to consider technology in the process with a view to introducing efficiencies and managing costs.  However, innovation is not restricted to technology.  Therefore, parties should be encouraged to consider other ways to bring about efficiency.  For example, even with use of innovative technology, it is still necessary for a degree of human involvement – to train the system, verify its processes and review the key documents it highlights.  Outsourced document review, with a reputable provider, will bring about further substantial cost savings, without compromising accuracy.
So, a new way of approaching disclosure.  Will it work?
As with all the rules that have gone before it, its success will be determined by its level of adoption and enforcement.  In my view, the increasing spiral of disclosure costs are the result of three phenomena:
– Big Data and the exponential increase in volumes of documents (and, therefore, potential evidence); and, crucially
– The conduct of opposing parties. Some parties use disclosure as a tactical playground.  They use all sorts of tricks, usually to suggest that the producing party is hiding – or not properly looking for – data.  Also, we see too many instances of undue focus on a party’s process for carrying out their obligations, rather than any suggestion that errors are evidenced from its content; and
– The failure of the court to control the process. Unless properly policed by the court, I can foresee situations where parties may object to another party’s proposed model under the new rule for no better reason that, in suggesting it, they must have something to hide!  It is not good enough for the court to avoid engaging in disclosure disputes, simply because the judge does not understand the processes the parties are advocating or disputing.  As with other areas of the case, it is for the parties to educate the judge on what is proposed and for the judge to take time to listen.
So, if law firms and their clients engage with the spirit of the new rules and cease attempting to use the process for shameless tactical manoeuvring – and if the Court recognises and deals with blatant attempts by the parties to abuse them –  we may just stand half a chance.
Another unknown is what might happen to the draft once it has been submitted to the Civil Procedure Rule Committee.  It would be reassuring it if emerges relatively unscathed – and to the extent that any changes are made, there is a further period of consultation (at least with the drafting Working Party) before it is finally signed off and implemented.
Have your say
The consultation period runs until the end of February 2018.  I would encourage everyone with an interest in data management in a disclosure context to respond formally.  I have sought to restrict the above to some of the main topics, but will be submitting a far more detailed technical response in due course.
Vince Neicho is a recognised expert in e-disclosure and document management, having spent over 41 years’ experience at Allen & Overy, latterly as litigation support senior manager. As we revealed on 29 June, Vince joined Integreon as a legal solutions consultant and has been given the title of vice president of legal services.