Two preceding articles have considered the implications of the Mitchell judgment, one in general terms and one more specifically, with a look at alternative approaches which we might see from the courts.
This third post looks at what the disclosure obligations actually are by reference to rules and cases – not a rule-by-rule analysis, but pointers to sources whose primary focus is on properly reducing disclosure or on the level of competence expected of lawyers (and judges, perhaps). There is probably room for a fourth post concentrating on what might be done to avoid getting into the position where deadlines might be missed. You have had enough words on this for now (and if you have not, I certainly have) so I will do this bit in the shortest form possible.
There is only so much value in squealing that the sky is about to fall in. Let us accept that strict enforcement of compliance with the rules is a fixed policy of the senior judiciary; what is needed is a is a cool analysis of what is required to avoid the kind of conduct which gives rise to sanctions in the first place. Consistent with my general approach, I try to look at it in more positive ways than merely “How do you avoid breaches?” – that defensive benefit is a by-product of getting it right. “Getting it right” in disclosure terms includes producing the minimum consistent with the duty to court and client – the court calls it “proportionality”; the client calls it “value”.
Rules and cases
Do read the bloody rules – not just those added in 2013 but those which preceded them and which are still in force. Between them, they offer a code which, properly used, allows you to limit the scope of your own disclosure and to enforce limits on the disclosure of your opponents. “Allows” is actually the wrong word – these rules positively require you to reduce the scope of disclosure and require judges to police that with the “active management” which has been expected of them at least since 1999. Read the rest of this entry »