The Report and Recommendations of the Commercial Court Long Trials Working Party was published on 6 December 2007. Its 83 pages deserve a closer look than time allows now, but we will have a quick summary of the passages relating to disclosure.
Its immediate context is long and complex trials and the management and preparation for them. The Commercial Court has long been the place where new ideas take root and the Commercial Court Guide has supplements to the CPR which, for the most part, can be used in any court where appropriate within the court’s discretion. The recommendations therefore have implications beyond the Commercial Court itself, and beyond the trial period which is to run from 1 February to 31 July 2008.
The Working Party (WP) identifies the disclosure problem thus:
..the disclosure weapon is often blunt. At present, it is sometimes only when Lists of Documents are exchanged that the parties discover the extent of the disclosure (large or small) which the other side is proposing to give on a “standard” basis. This may result in the automatic production of vast numbers of documents which turn out to be irrelevant or useless or it may miss vital classes of documents altogether.
The WP’s conclusion is that a more “surgical” approach is needed, adding that this is true in all cases. The CPR, it says already provides the court with the flexibility to make appropriate orders as to the scope of disclosure in a particular case. These powers, it goes on, must be used more often, if necessary issue by issue. It suggests the use of a new type of document, a disclosure schedule which will be, effectively, a “shopping list” for disclosure.
A specimen disclosure schedule is provided as an appendix. The specimen allows each party to set out its position in relation to each class of documents against each issue – that the range is too wide or narrow, that this class is too expensive to access relative to its likely value and so on.
There is nothing revolutionary about the theory here – Part 31 and its Practice Direction (to say nothing of the discretionary powers) already provide that parties must form a view on these things and share their views with their opponents and with the court. What counts, though, is that the visual demonstration which the specimen gives – especially with the authority which the WP brings – makes it quite obvious that this is what should happen, not just in the very large cases but in any case where there is room for doubt or argument as to whether any documents really add anything to the matter.
The WP suggests that automatic disclosure should not take place until after the CMC, which decides on the scope of disclosure. The decision-making lawyers should be present at the CMC, including leading counsel if involved by then. It adds that frequently (particularly at the early stages of a case) it is one of the solicitors rather than Leading Counsel that has a real grip of the documents. Therefore the relevant lawyer must be present at the CMC and be in a position to answer any questions rom the judge about disclosure.
This ties in with something else which the Commercial Court Guide emphasises more than the CPR does – the actual knowledge of the person who signs the Disclosure Statement. The Commercial Court Guide makes it clear that the court may question the extent of such knowledge and require a more authoritative person to give the Disclosure Statement. This in turn links with another WP recommendation, to do with the involvement – and the informed involvement – of a party’s senior executives in the decision-making process.
The WP then tackles the tendency to want too much disclosure of irrelevant documents or to foist too much disclosure on the other side. The answer lies in costs sanctions or costs shifting:
The Guide should also make it clear that costs sanctions will be imposed if large quantities of irrelevant documents are disclosed. It should also emphasise that if a party requires what seems like “generous” disclosure, the court may be prepared to give it only on condition that the party requiring disclosure pays “up front” the costs of that exercise.
There is more, but this gives the main points. I don’t think there will be much argument with these recommendations which, to my eye, largely formalise what ought to be happening anyway. It is obvious, even if the Practice Direction to Part 31 did not require it (which it does) that parties must know about their sources of documents, electronic and otherwise, before the first CMC and must have discussed them. The idea of being required to formalise their respective views into a disclosure schedule is a good one.
This scales down as well. You do not need to be talking about millions of documents on redundant tapes for it to be sensible to decide, very early on, what is and what is not likely to be helpful having regard to all the CPR factors which help define proportionality. I have come across much smaller exercises where it was clear by well before trial that half the documents were a waste of trees and processing time, to say nothing of lawyer time.
And what of the “surgical” approach which the WP wants to see? That is in part a human matter – you don’t need a software application to decide that this custodian or that box of paper is irrelevant. Nor will a computer make decisions at the micro level – that this document is one which will help decide the case. In part, however, this surgery is most likely to be achieved by a computer.
The choice of route requires three components – a calculation of hours times charging rates for a purely manual review, a costs estimate for an IT solution plus a reduced number of lawyer hours, and an understanding of what you might expect from an IT solution.
The active management which the WP is advocating will not necessarily require you to use an IT solution. I think it likely, however, that what is said about directing the scope of disclosure will quickly extend to enquiry into the method proposed for a surgical assessment. That is not a recommendation to computerise the documents in every case. It is, however, a suggestion that you go to CMCs equipped to show what the costs should be by either route. You might surprise yourself.