A la carte disclosure: options for litigators on the new Jackson menu

By the time this issue of Solicitors Journal reaches desks, litigators will have entered the new post-Jackson era following the entry into force on 1 April of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Much of the reporting has covered funding and costs of civil litigation, but new provisions introduced in the 60th amendment to the Civil Procedure Rules (CPR) have a much wider effect. These include significant changes affecting other areas including disclosure and electronic disclosure, which have been largely overlooked.

The Overriding Objective, CPR 1.1, has been amended to embody the new post-Jackson era of civil litigation. For nearly 14 years the CPR has enabled courts to deal with cases "justly". The mandate after 1 April is to deal with cases "justly and at a proportionate cost". The revised CPR 3.17 reinforces this, linking case management with costs management, and requiring the court to regard any available budgets and take account of costs involved when making case management decisions. This applies at each procedural step, regardless of whether a costs management order has been made.

With Lord Justice Jackson warning that "huge" sums of money will be wasted if the legal profession gets electronic disclosure wrong, it is no surprise that major changes have been made to CPR 31. These amendments are aimed at reducing the number of documents disclosed, placing a greater emphasis on forward planning, tailoring the approach to disclosure to the particular case and ensuring disclosure costs are proportionate and carefully monitored.

Disclosure report

A mandatory requirement to file a disclosure report 14 days before the first case management conference (CMC) is the biggest change. This report must be completed by someone with the requisite knowledge and contain a signed statement of truth. A party must:

set out what documents exist or may exist which are or may be relevant;

describe where and with whom such documents are located;

explain how they are stored (particularly relevant for electronic documents);

estimate the broad range of cost of standard disclosure (including e-disclosure); and

state which disclosure order will be sought.

On 20 March 2013, a new one page court form 'Disclosure report' N263 was published. The form and content of the report appears to be at odds with a lot of the commentary and guidance on the new rules not least because question one requires a party to describe "using the number 1, 2, etc., all documents... which may exist and which may be relevant to the issues in the case, and in respect of each such document where and with whom it may be found, and in the case of electronic documents how the same are stored". This wording, with the reference to "document" in the singular and provision for the "list" to be filed as a separate document in the event that more than five documents need to be listed, is surprising. Taken literally, the form appears to require a full document-by-document list of potentially relevant documents that do or may exist (akin to a disclosure list) rather than a brief description of the broad classes or categories of document (hard copy and electronic) which may be relevant to the issues in the case and therefore may fall within the scope of any disclosure order. The form also gives very little room for an explanation of the reasons behind the party's proposed choice of a disclosure "menu option".

Multi-track cases other than personal injury cases adopt a menu approach to the range of possible disclosure orders (see box) supplemented with much more detailed directions including:

what searches for hard copy and electronic documents are to be undertaken, of which places/sources, for what type of documents, in what date range and in the case of electronic documents, using what search terms;

whether lists are required to be served;

whether disclosure is to be given in stages;

how and when disclosure statement to be given;

format in which documents are to be disclosed; and

approach to documents which are no longer in existence.

It remains to be seen which of the menu options will prove popular - for those with an arbitration background, "reliance" disclosure will be a familiar option, while issue-based disclosure may be favoured in cases where issues are well defined. In difficult cases, judges and practitioners may default to "standard disclosure" while orders for no disclosure and train-of-enquiry disclosure are likely to be rare.

The changes to CPR 31.5 give rise to a number of inconsistencies with the other provisions of CPR 31 and its Practice Directions which are, for now, unchanged. Large parts of CPR 31 remain drafted by reference to standard disclosure, and PD 31A 1.1 still states (incorrectly for most multi-track cases) that the "normal order" for disclosure will be standard disclosure. Practitioners will need to watch for further guidance and decisions on the areas of uncertainty which arise due to a lack of harmonisation between the various rules and practice directions.

The changes apply to all cases in which the first CMC takes place (or is due to take place) on or after 16 April 2013 and not like most other changes, only those cases where proceedings commenced on or after 1 April. This may cause difficulties for parties where the CMC is imminent.

Budgeting challenges

Disclosure exercises can evolve from a relatively small and uncomplicated task into a much larger exercise as new issues arise as the document review progresses.

New cost rules will require litigants and lawyers to establish a firmer grasp of what may be entailed and likely costs prior to the actual review, so budgets can be accurately formulated.

Metrics are available to generate likely costs for completing an e-disclosure exercise, e.g., 1GB equates to 5,000 documents, or one custodian will hold 3GBs for every relevant year. Some litigants will try and establish the number of custodians that are relevant and then extrapolate likely data volumes (GBs) and estimate document volumes (assuming a number of documents per GB) and therefore the likely cost of document review.

However, actual figures can vary widely depending on the case and type of organisation the data is harvested from. One GB of data from a construction dispute can contain 250 documents including plans and site surveys whereas 1GB in a banking litigation case may contain 15,000 emails.

Lawyers and litigants must gain a good understanding of the issues, relevant individuals, sources of data, data volumes and the most effective filtering criteria as quickly as possible and before the first CMC. There are three ways of addressing the challenge.

1. Before the dispute arises

Companies with comprehensive data management and retention policies in place can react quickly to potential litigation matters. They will have a better steer about likely sources of data and volumes and the cost and time implications of extracting the relevant information from their IT infrastructure.

This task has become more complex as many organisations embrace cloud-based technology with data residing outside their IT infrastructure and in different jurisdictions. Challenges can arise when employees use personal mobile devices such as iPads for work purposes and with the increasing use of social media for business networking.

2. Scope early

Scoping is a fundamental part of any e-disclosure exercise, but there is often a tendency to wait until the disclosure deadline is approaching to bring technical specialists on board. This can lead to rushing the collection and review of data, relevant individuals and/or data sources being missed, and using non-effective filtering criteria which may need tweaking later - causing time and cost complications.

New cost management and disclosure rules should encourage the involvement of technology consultants much earlier in proceedings, so the scope and scale of disclosure can be established and budgeted for.

3. Use real data

It is advisable to load the relevant data or sub set of data into an early data assessment system, where lawyers can analyse documents using sophisticated analytical tools and identify relevant data sources efficiently.

Filtering strategies, such as applying keywords and date ranges can be tested on live data to see how effective they are at culling the data and provide an insight to the likely volume of documents that need reviewing. Adjusting these filters in real time will optimise results.

This bird's eye view of the initial data set will give legal teams insight into the merits of the case and whether any new custodians and/or data sources should be considered.

This approach provides a better understanding of the likely document volumes, allowing parties to put together accurate budgets and agree key aspects, such as keywords, in a defensible manner. It should result in any discussions about disclosure at the CMC being very business-like with the use of spreadsheets and other budgeting tools to assess the cost impact of the different options before the court.

It is important to involve the client at all stages and ensure the client understands and agrees the parameters for the exercise and the impact of possible outcomes before entering into negotiations or attending the CMC.

New spirit

Various technologies can help keeping costs within budget. Outsourcing document review, especially for a first-pass review, is a cost effective way of identifying irrelevant documents that have slipped through the filters, meaning lawyers can focus on the relevant documents and issues at hand.

There is also an increasing use of technology-assisted review (TAR). These technologies learn from the decision reviewers are making on documents and apply that learning for the analysis of other documents. This is then used to prioritise the most relevant/privileged documents to the top of the pile for review, allowing legal teams to acquire a better understanding of a case more quickly.

TAR can also automatically "tag" documents, deciding which ones are most relevant.

There may be a degree of apprehension regarding the new rules and differing opinions about what they require, but encouraging parties to contemplate what is required in advance will result in an overall cost saving to litigants and matters being managed in a much more effective manner in the spirit of the new rules.