I spend a sadly disproportionate amount of my life touring the Web with the aid of Google, looking for things which are relevant to disclosure of documents, and in particular electronic disclosure.
Look, I even talk like Part 31 of the CPR – I can’t get through an opening sentence without using words like “disproportionate” and “relevant”. But, of course, “relevant” is neither here nor there in deciding whether a document is to be disclosed – is it?
The subject comes up because I have just stumbled on the e-Disclosure web page of a large and very well-known firm. Two things caught my eye. One was the assertion that the documents which must be disclosed are all those which are “relevant” – they even put “relevant” in quotation marks as if to imply that they had taken it from the rules themselves. The other is that the Civil Procedure Rules have nothing expressly dealing with electronic documents. One of these assertions is misleadingly wrong. The other was true when the article was written, but is no longer true.
As regular readers know, I occasionally share a speaking platform with HHJ Simon Brown QC of Birmingham Civil Justice Centre – we have got one such engagement next week at ILTA. Judge Brown is a strong proponent of narrowing disclosure as early as possible in the case and, since he is a Mercantile Judge, he gets to do his own case management and can urge his views forcefully on parties.
There are several layers to a decision whether a document or class of documents is worth troubling opponents or the court with. The first is whether it is actually disclosable as part of standard disclosure under Part 31.6 CPR, and the test for that is NOT relevance. A party is required to disclose documents on which he relies, those which adversely affect his case, and those which support or adversely affect another party’s case. There is room for those which carry some significant narrative without exactly fitting that definition, but it is this narrow scope which protects one party from the delivery of thousands of documents which may (just) be “relevant” but which add nothing to the judge’s fact-finding exercise.
The test when I was a boy was indeed that of relevance. The old O24 RSC (Rules of the Supreme Court) referred to a party’s obligation to give discovery of documents which are or have been in their possession, custody or power relating to matters in question in the action. The best summary of what this really meant comes in Chapter 21 of Lord Woolf’s report Access to Justice and I am going to inflict it on you because the point is fundamental to an understanding of the present obligations.
Woolf said (Paragraph 15) that
The obligations under Order 24 are wider than its language would immediately suggest. This is the result of the test of relevance which was set out by Brett LJ … in the Peruvian Guano case (Compagnie Financiere du Pacifique v. Peruvian Guano Company (1882) 11 QBD 55).
He quoted the test which Brett LJ set out in that case and added this:
It distinguishes between direct and indirect relevance. It is the inclusion in the test of documents which are indirectly relevant which causes most of the present problems.
The result of the Peruvian Guano decision was to make virtually unlimited the range of potentially relevant (and therefore discoverable) documents, which parties and their lawyers are obliged to review and list, and which the other side is obliged to read, against the knowledge that only a handful of such documents will affect the outcome of the case. In that sense, it is a monumentally inefficient process, especially in the larger cases. The more conscientiously it is carried out, the more inefficient it is.
This was the evil which Lord Woolf’s new definition of a disclosable document tried to grapple with. As with some other parts of the CPR which resulted, one sometimes wishes that Woolf’s original and lucid explanations had gone through into the rules unchanged. He envisaged four categories of documents, and again I quote (from Paragraph 22 – the emphasis is mine):
The parties’ own documents: these are documents which a party relies upon in support of his contentions in the proceedings.
Adverse documents: these are documents of which a party is aware and which to a material extent adversely affect his own case or support another party’s case.
The relevant documents: these are documents which are relevant to the issues in the proceedings, but which do not fall into categories 1 or 2 because they do not obviously support or undermine either side’s case. They are part of the “story” or background. The category includes documents which, though relevant, may not be necessary for the fair disposal of the case. It is fair to say that this category produces proportionately the greatest number of documents disclosed and to least effect.
Train of inquiry documents: these are the documents referred to by Brett LJ in the Peruvian Guano case.
Woolf envisaged that Categories 1 and 2 only would comprise what he there christened “standard discovery”. His definitions of own documents and adverse documents became more or less exactly the CPR definition of standard disclosure. Anything else requires what Part 31.12 CPR calls specific disclosure which must be ordered or agreed. This gives rise, in my view, to a confusion between adversarial contests in which one party tries to force another to disclose something (the general use of specific disclosure) and a consensual conclusion that the interests of justice may warrant the inclusion of documents which, whilst not strictly the stuff of standard disclosure, are nevertheless useful.
Be that as it may, the fundamental point is that standard disclosure covers less (and sometimes very much less) than the old O24 and Peruvian Guano test. Parties could make much better use than they do of this to reduce the scope of disclosure, and some judges could be more rigorous than they are in enforcing that. Relevant is irrelevant.
The second point in the web page is the assertion that the rules contain nothing expressly dealing with electronic documents. The page is dated Summer 2005 and that was then true. By October of that year, however, we got the Practice Direction to Part 31 CPR which did cover electronic documents. Leaving aside an entertaining but largely academic debate I had yesterday with a Master and a Judge as to the difference, in terms of obligation, between a Rule and a Practice Direction, the PD to Part 31 has some detailed requirements as to electronic documents, not least an obligation to discuss them with opponents and to take differences or difficulties to the judge.
It is not really fair to pillory a firm because of what is on its web site – I run a web site for a law firm and am very well aware that keeping a wide range of pages always current is extremely difficult. I am sure this particular firm’s lawyers are well aware of the true extent of the obligation, whatever their web site says.
What is said there, however – the bald assertion that all “relevant” documents must be disclosed – is almost certainly what a large number of lawyers would give as their own understanding of the scope of 31.6 CPR. The existence of the Practice Direction to Part 31 is a well-kept secret – not so long ago, I heard a partner in a big firm, who had just finished giving a talk on electronic disclosure, say that he had only come across the PD whilst preparing to give his talk.
This state of innocence will be brought to an end shortly by two documents which are presently in draft. One is a simple technology questionnaire which, if it does nothing else, will force parties to focus at least to the extent of considering whether they actually have any electronic sources. The other is the draft form of directions order which Judge Brown is presently circulating for comment and about which I wrote recently (Directions initiative in Birmingham).
I can sense from here your hackles rising. Let’s end by repeating what Lord Woolf said about his third category of documents, the “relevant” ones which are not own documents or adverse documents.
It is fair to say that this category produces proportionately the greatest number of documents disclosed and to least effect.
Whilst many solicitors are quite happy to disclose great numbers of documents to little effect, it is unlikely that their clients share this enthusiasm. It is certain that judges do not share it. One in five companies in the US have abandoned or settled litigation because of the cost of document-handling, and companies here will go the same way – are already going the same way. Clients are getting picky about effectiveness and cost-effectiveness, and so are judges.
It is much harder to identify the documents which matter, as opposed to those which may be merely relevant and, in a case of any size, you will almost certainly need the help of some technology to achieve it. If you want any help with the obligations under the rules, or with the technology which is available for cost-effective compliance with them, please do not hesitate to contact me.