I went recently with Recommind (now OpenText) to talk to a City law firm about developments in eDisclosure in England and Wales. I have done a few of these with Recommind over the years, where we divide an hour between me talking about rules and cases and Recommind showing how their software, and particularly the predictive coding element of it, is relevant to modern disclosure duties.
When we originally devised it, this program focused on Practice Direction 31B, the Electronic Documents Questionnaire and the 2013 amendments to the rules instigated by Lord Justice Jackson. We reckoned that these building blocks were now old hat for a firm of this calibre, and I put together a new agenda which, while reciting a few key (and often misunderstood) rules, concentrated on the lessons from the more recent cases. What follows (divided into four posts) is a summary of what I said, with links to case reports and articles which I wrote at the time of the judgments.
My son Will and I are working on a replacement for the resources which I used to keep on my website and which disappeared with the latest website update. The content is more or less sorted out, but the mechanics will take us a while, and these posts might serve as an interim update.
The immediate aftermath of any rule change brings cases involving some breach of the new rules. The Court of Appeal’s inept Mitchell judgment of 2013 exacerbated that, giving rise to many unhelpful judgments about trivial matters from judges who felt bound to abandon common sense in favour of precedent. That is now gone, and with it many of the cases which were decided between Mitchell and the slightly more emollient Denton judgment (to say nothing of the millions in costs spent in fighting about purely technical lapses).
That period may have helped people focus more on the rules than hitherto. My catchphrase of the period was RTFR, where the first R is “Read”, the last R is “Rules” and the F depends on your mood and vocabulary.
More recently, we have seen a shift in judicial attention. Whatever the reason, there have been fewer judgments involving breaches of time limits or of specific rules, and a closer focus on the conduct of discovery, the methods used and the process, with proportionality, cooperation and common sense dominating. It all comes back to the rules though.
Quotations from judgments over this period include:
“This disclosure process has been cumbersome and inadequate”
“… without properly taking stock as to whether the process had overtaken the purpose”.
“… the use of vast armies without any sufficient focus…”
Attention focuses on two broad areas. The first is that while the case management conference decides the scope of disclosure, it is necessary to do sufficient investigatory work before the CMC to be able to articulate the position properly to opponents and then the court. The second is that while the starting principle remains that the giving party decides what should be disclosed, the rules require (and I mean “require” in a meaningful way) discussion in advance, leading either to agreement or to a clear definition of the disputed points. The ambition is supposed to be the reduction of the disclosed volumes to a level where the least amount of cost and time is expended without imperilling a just conclusion – that is what proportionality means in this context.
Like many ideals, this is easier to recite as a proposition than to achieve. Some judgments seem to belong in the La La Land of a judicial head which has never been troubled by actually having to manage disclosure, where human and technical difficulties have never obtruded, and where the costs have never been an issue. Some of the judicial criticism seems unfair to those who know anything of the real world. Some stories are destined to have an unhappy ending for somebody.
The least we can do, however, is know what the rules say and to look at judgments not just as formal precedents (which many of them are not in the strict sense) but as awful warnings.
There is one other thing which should encourage us all to pay closer attention to disclosure obligations. There have been a couple of cases, most recently Eaglesham v the Ministry of Defence (my article here), where a case (in this case the defence) was struck out for disclosure failures. If you can lose a case without any discussion on the merits because of non-compliance with disclosure rules, then it is perhaps time to run your eye over the requirements.
Although these posts are about rules and cases rather than about technology, you would find it surprising if I passed by without mentioning the use of technology to extract meaningful information about the scope, the proposed method, and the costs of disclosure in preparation for those discussions and for the CMC.
The posts in the series will be:
A selection of rules relevant to disclosure obligations
Some of the recent cases
Developments relevant to use of technology like predictive coding.
The posts will not necessarily appear consecutively – there is plenty else to write about.