Proposed new disclosure regime for England & Wales: Feedback by Jonathan Maas

Litigators in England & Wales will know that we have just passed the end of the consultation period for landmark changes to the way in which we conduct disclosure.  For those who are not familiar with the detail I suggest you visit Simmons & Simmons’ online knowledge resource (and my old ward), elexica:  (Simmons & Simmons partner Ed Crosse is President of the London Solicitors Litigation Association and a member of the drafting committee proposing these changes.)
To quote from elexica, a Disclosure Working Group was formed in 2016 “in response to widespread concerns expressed by court users and the profession regarding the perceived excessive costs, scale and complexity of disclosure”.  In this paper I share my thoughts on those proposals.  I formally provided this feedback to the Working Group on 27 February 2018.
First, and briefly, why do I feel qualified to comment?  I have been providing and receiving disclosure for over 35 years in international law firms (28 years) and consultancies (7 years).  In all that time I have exclusively worked on document-intensive cases involving eye-watering amounts of paper and electronic documents. A founding member of LiST (the Litigation Support Technology Group), I was part of LiST working groups that drafted a Practice Direction for the Use of IT in Civil Proceedings (July 2005) and a Technology Questionnaire (September 2004) which, under a different working group chaired by Senior Master Whitaker, jointly became the current CPR Part 31, PD31B and the EDQ.  I have also been known to speak and write widely about disclosure.
Opening reaction
My initial thought, I suspect like many who have considered the proposals, was to quote Chris Dale’s mantra of RTFR, where the Rs stand for Read and Rules respectively.  There is, I thought, already enough in the Civil Procedure Rules for the parties and the courts to manage disclosure, we just need to be using the existing Rules sensibly.  But litigators are still not doing that and, more importantly, are not being chastised by the courts for not doing so.
In early February I went to a sold-out event organised by the London chapter of ACEDS (Association of Certified eDiscovery Specialists) entitled “Have your say on the proposed disclosure rule changes”.  The excellent panel included members of the drafting committee and HHJ David Wacksman (Course Director at the Judicial College).  I refer you to Chris Dale’s comprehensive report of that presentation here:
I left that event convinced of the argument for change and in awe of the simple genius of applying different levels of disclosure to different elements of the case.
In mid-February I attended a seminar hosted by barristers chambers Hardwicke and largely presented by Charles Raffin, co-author with Michael Wheater of “Electronic Disclosure – Law and Practice” (for which I was a technical consultant).  Here, Charles took the audience on a detailed journey through the proposals paragraph by paragraph.  It was during that journey that I started seeing that there may be a snag or two in practice.
I remain of the view that these proposals are broadly for the good and I continue to support them.  However, I think there are a number of fundamental areas where they are less robust and more open to confusion than need be for the pilot.
What follows below is the relevant part (I have removed the above introduction) of the exact feedback I sent to the Working Group (although I confess to a little bit of proof-reading this second time round):
Although I was not originally convinced that we needed a change to the existing rules, I left the ACEDS event enthused by the reasons, and need, for the proposed changes.  It is a sensible and timeous reaction to concerns expressed by court users.  I am also in awe of the simple genius of applying different depths of disclosure to different elements of the case.  However, there are some general areas where I would like to provide constructive feedback (without raking over the proposals paragraph by paragraph).  I appreciate that some of what I say below will be ironed out during the two-year pilot.
General Feedback
Cultural change
There is much talk of the need for a change to the current disclosure culture.  I agree, but I do not think it can happen without providing an encouraging environment (the carrot) within which these changes can be successfully adopted.  Broadly, the draft Practice Direction assumes a general level of technical knowledge across the board that I genuinely do not believe exists.  The DWG assumes that lawyers just need to be given a better structure within which to navigate modern disclosure.  Whilst that is undoubtedly correct, what we are dealing with here is considerably more fundamental:  for the vast majority of lawyers and judges the basics of electronic disclosure (which is what we are really addressing here) is a complete unknown, or a partial unknown (which is potentially even more worrying).  They are not suddenly going to be doing things “right” simply because a PD says that’s what they should be doing.  For this reason I also cannot understand how the new Disclosure Guidance Hearings will work if there is no suitably knowledgeable person to guide the parties.  How can beneficial debate about technical disclosure matters be held when those engaged do not fully understand the detail?
A change of culture also needs a stick.  I believe that the Civil Procedure Rule Committee will, as it has done in the past, remove from the draft the “teeth” required by the courts to encourage adoption of these changes.  The final PD is, I think, in danger of being a diluted version of the current draft and so stand less chance of achieving the DWG’s goals.
In the modern world technology and law can no longer be divorced.  To do so is to look at only half the commercial realities faced by parties to disputes.  I very much feel that the PD, as pragmatic as it is, has been drafted by lawyers and has not benefited from the thoughts of anyone involved in the technical issues that are an inextricable part of modern disclosure.  Given what the DWG is seeking to achieve, this is a worrying omission.
I have two suggestions for assisting with the required cultural change.  First, I suggest that the lack of experience of the technical element of disclosure be ameliorated by the use of what in America are known as Special Masters (and what, I believe, Lord Justice Jackson initially referred to as “Assessors”).  In the short to medium term these people would be responsible for (a) adjudicating – perhaps with the judge – on purely technical disclosure matters (for instance, applications concerning the appropriateness of predictive coding, acceptable levels of recall, how to disclose structured data, statistical sampling, timetables for completing electronic disclosure, leading Disclosure Guidance Hearings, etc.) and (b) over time, transferring their practical knowledge to the judiciary.  It is exactly these sorts of areas where the DWG will be alive to the fact that much time and money is wasted by the parties legitimately seeking guidance and/or frittering away their opponent’s budgets through the current attrition of “discussion” around the Case Management Conference.
My second suggestion is for the DWG to lobby the Rule Committee in an attempt to avoid the extraction of the PD’s teeth so as to enable judges to enforce the spirit of the new scheme and to punish parties and their legal representatives when the PD is not followed correctly.
At the same time we need to focus on the education of the next generation of litigators.  Law schools and colleges need to educate their students about the wider technical issues brought about by both hard copy and electronic disclosure.  I do not envisage an in-depth course but, rather, a simple overview that explains what sorts of problems face litigators in this modern world and what are acceptable approaches to these problems.  We need to produce more commercially aware lawyers to retain the business of commercially aware corporations.
The draft PD is confusing in places.  The term “Issues for Disclosure” is already being explained away as not the issues as pleaded.  This is a bad start.  Would it not be better to shy away from the word “issue” entirely?  I suggest something like “Points of Contention”.
Also, the acronym “TAR” seems rather tossed into the mix without much thought (perhaps another sign of the lack of technical input?).  There are two separate elements of the use of technology in disclosure.  One should be non-negotiable (as other jurisdictions are suggesting) whilst the other depends on the nature of the documentary evidence in each case.  The use of technology to reduce volume and to direct the parties to the most likely relevant material early on should be non-negotiable.  Tools such as de-duplication and email threading must be mandatory.  The use of technology to conduct predictive coding and other efficient routes to relevant documents must be considered but may not apply or be proportionate in all cases.
Adverse documents
I am confused by the DWG’s stance on adverse documents.  In an environment that actively encourages mediation and settlement over litigation, why on earth does the PD not require parties to disclose these as soon as possible?  I cannot understand the thinking behind this.
Evaluation of the pilot
I am also concerned that the pilot does not have any means of measurement of success or failure.  How can problems encountered and solved during the pilot be fed back into the DWG, or is it anticipated that after two years it will simply slide into common usage without any further thought?  Technology will have advanced dramatically over those two years, such as disclosure may again look completely different to what it is now.
Thank you for your consideration of these points and I am, of course, available to discuss any of this in more detail.  I, like the DWG, want to provide a better, clearer and more efficient regime for disclosure.
Jonathan Maas is founder of The Maas Consulting Group and writes the BONG: a daily email alert to subscribers containing brief snippets of interesting recent discovery, GDPR, legal technology and other news.