Bringing clarity to the implications of the proposed new disclosure rule

I went last week to a panel discussion called Have your say on the proposed disclosure rule changes. It was held under the auspices of the UK Chapter of ACEDS (the Association of Certified eDiscovery Specialists), organised largely by the extremely efficient James MacGregor of Inventus, and hosted by Clyde & Co, with drinks and food sponsored by Inventus.

My starting point, as you may have gathered from an earlier article, was that it seems rather heavy-handed to give us a whole new rule, with all that that entails, when the disclosure working group itself makes clear that many of the existing problems arise because nobody, lawyers and judges alike, is reading and applying the existing rules. Lady Justice Gloster’s time, I reckoned (see my 2018 SCL predictions here) might be better spent visiting delinquent judges with RTFR (“Read the F* Rules”) tattooed on her knuckles.

I earn my living, in part, from talking about rules, and to have the General Data Protection Regulation and a proposed new disclosure rule in one year is not something to complain about. I came away with a modified view of the merits of the proposed new rule, and it is worth setting out in some detail the facts and arguments which persuaded me of its potential value.

The speakers

Lady Justice Gloster was unable to appear, and her place was taken at very short notice by HH Judge David Waksman. It is no disrespect to Lady Justice Gloster to say that a judge with Judge Waksman’s practical experience is what is needed here. Quite apart from sitting in various courts, he was involved in the implementation of the Jackson reforms, and (crucially for these purposes) is Course Director at the Judicial College. The latter role may prove the most important in the months ahead.

The other panel members were Ed Crosse of Simmons & Simmons, President of the London Solicitors Litigation Association, Tim Brown of RPC and Caroline Field of Fox and Partners.  Vince Neicho of Integreon was the able moderator.

Vince Neicho, Judge Waksman, Ed Crosse

These are all people who (in one of my favourite phrases) get their hands dirty actually managing litigation cases with heavy discovery commitments. They have all been involved in the development of the present draft and have taken part in a number of explanatory events like the one reported here.

The draft rule

For ease of reference (since I don’t intend to describe the new rule here), you might like to look first at this article on the Simmons & Simmons Elexica site which describes the problems, the proposed solutions and the planned timetable. It includes links to a Guidance Note, the draft practice direction and the draft Disclosure Review Document. This post does not recite the provisions in detail, merely reports on what was said at the session with occasional comments (usually in square brackets) from me.

The origins of the new rule

Ed Crosse talked us through the origins of the new proposals. The idea originated, it seems, from what you might call customer pressure. Representatives of the GC100 told the Lord Chancellor that they were not happy with the effect of the recent attempts made to improve disclosure (meaning, I assume, Practice Direction 31B and Lord Justice Jackson’s changes to Rule 31.5). I should perhaps declare a kind of interest here in that I was a member of Senior Master Whitaker’s working party which drafted PD31B and the Electronic Documents Questionnaire, as was Vince Neicho.

What caught the Lord Chancellor’s attention was the suggestion that major corporations were thinking of putting clauses into their contracts providing for jurisdictions or methods of dispute resolution other than litigation in the courts of England & Wales. This fear, I should add, has been expressed since at least early 2011 when the government produced a fairly hopeless paper on the subject – I wrote about that, in cynical mode, in an article of May 2011 called UK government aims for a world-class legal reputation while neglecting the basics back home. I wrote about it again last week (see Reminders that there are rivals to London’s courts).

Much discussion followed from this threat (if that is the right word) from the GC100. It was easy to say what was wrong but less obvious what the remedy was. Lady Justice Gloster asked Chief Master Marsh, Mr Justice Knowles, Ed Crosse and others to consider the subject and they sought input from a wide range of people, including eDisclosure providers.

The problem really came down to human behaviour. Judges were critical of solicitors, and in particular of their unwillingness to have the discussions required by the rules. It was necessary, they thought, to make those discussions a mandatory process [as an RTFR aside, they already are required at least to talk to each other – literally to talk, not merely to lob emails at each other – by the rules specific to disclosure].

Solicitors in turn blamed the judges for not making orders conducive to efficient disclosure. Developments in other jurisdictions were apparently considered. It was accepted that not enough had been done to recognise the role of technology. The overall conclusion was that the whole of Part 31 needed redrafting.

Vince Neicho asked at this point, as I would have done, whether it would not have been simpler to add teeth to the existing rules. Ed Crosse said that it was deemed necessary to provide a clearer timetable than the present rules allowed because that would be easier to enforce. The problem, he thought, arose when Part 31 and PD 31B were watered down on their progress through the Civil Procedure Rule Committee – I can vouch for that, at least in relation to PD31B; my lips are sealed (or, at least, my pen is) on what a dispiriting experience that was.

Next steps and the pilot

With senior judges and the GC100 behind the idea of comprehensive change, and with a wide range of views considered, the working group set about drafting a new rule. Consultation closes at the end of February, and a pilot will be launched as soon as possible thereafter, perhaps by October 2018, for a two-year period in the Business and Property Courts in the Rolls Building in London and in Bristol, Cardiff, Birmingham, Manchester and Leeds.

The working group values feedback, preferably collated by associations such as ACEDS. Among the issues of principle to to be decided is whether there should be a case value limit below which parts of the new rule should not apply – the working group is acutely aware of the potential criticism that the new obligations will front-load costs on smaller matters.

The benefits of clarity

Wearing my international hat here for a moment, the system in England and Wales has always depended on lawyers doing the right thing. The US rules (or at least the practice) seems to an outsider to assume that one’s opponent is going to behave  badly and to “hide the ball” and conceal documents if possible. Americans already look with bewilderment on what they see as the present lax system of control prevailing in England and Wales. The provisions in the proposed new rule include (in some cases) a lessened duty to search which, on the face of it, opens the door to the possibility of semi-deliberate oversight by both lawyers and their clients.

The clarification of express duties is designed to counter that and to help lawyers explain the duties to their clients. An express duty to act honestly is helpful when dealing with less-than-honest clients who sometimes need help in understanding why English lawyers insist on producing unhelpful documents.

There will be an overarching duty to disclose adverse documents and a positive duty not to disclose large volumes of documents in a way which might obscure the ones which actually matter. All this comes in addition to express obligations to liaise and cooperate.

[2017 saw at least two civil litigants jailed for dishonest conduct with regard to evidence and disclosure and there was another one last week (for forgery), so it is hard to say that the present rules are inadequate, even if the practice is rare. Few reported cases involve dishonesty on the part of lawyers – failures tend to be of cock-up rather than conspiracy and of oversight rather than deliberate concealment].

Nevertheless, anything which clarifies what the duties are is to be welcomed.

Judge Waksman – the view from the court

Judge Waksman is alert to the argument that if the existing regime had sanctions and if parties were pushed harder, then all would be well. It is, he said, “music to a judge’s ears” to find that the parties have agreed standard disclosure and this, he said, discourages real investigation by the court. To enforce the required discussions and to drive cultural change, it was necessary to have significant sanctions for failures, not least to to help lawyers explain to clients why they must do certain things.

In drafting the new rule, the working group stood away from strikeout as a sanction [although this presumably remains available in extreme cases].

Solicitors perhaps need the lively apprehension that they and their firms will be criticised by name. This is more acceptable if it is clear where a line has been crossed.

A new way of doing business

Tim Brown described the proposed rule as laying the ground for “a new way of doing business between lawyers”. The rule is designed to to promote engagement and a focus on the issues. The obligation to prepare a list of issues at an early stage was not intended to be definitive for the whole case – there would be no sanction if you missed an issue at this stage.

There will be no presumption that you are entitled to options D (Narrow Search-based Disclosure) or E (Wide Search-based Disclosure). Judges will have a realistic opportunity to challenge parties in a way that is not done at present [so they could now, of course, if the judge had time and could be bothered to do it].

Will there be front-loading of costs? Lawyers ought to be clear on these things anyway by this stage in the proceedings.

One area of contention is likely to be the provisions about adverse documents. A reduced duty to search did not entitle a party to sit on an adverse document. The obligation under Basic Disclosure is to enable all the parties to understand the case against them. It is accepted that there will be a debate about the timing of the production of adverse documents.

Remedying lack of engagement

Caroline Field described the present problem as “a lack of engagement”. Many solicitors seemed to approach disclosure with a mindset which suggested that they feel that they must look as though they have done something just before the CMC. The new rule aimed to force a focus and thence to avoid the costs of an unfocused process. There was a balance to be struck between two opposing mindsets – defendants not wanting to undertake extensive work to produce everything, and claimants who felt they must push for everything.

Putting the horse in front of the court

Judge Waksman said that the present focus on custodians and keywords was not a very efficient way of getting to the issues. The present system, at least as practised, was “all back to front at the moment”. Parties are supposed to have a list of issues anyway [how else are they to plead the case properly?]

It was possible, Judge Waksman said, to have different modes of disclosure for different issues, a point which had not occurred to me nor, I think, to others.

There was no getting away from the fact that the proposals amount to front-loading of work and therefore costs. One of the benefits was the identification of potential problem areas, not just custodians and key words [this is part of the rationale within the present EDQ as well].

It is sensible to require estimates in order to form a view on proportionality before parties are made to produce a full budget.

There is no doubt that many judges are “pretty ignorant” of what is involved in electronic disclosure and about the role of eDisclosure providers. What many judges see is a task being outsourced by solicitors who then charge for many hours of their own in addition to the external costs. There is a need for better education about the whole process. [Lawyers may not-so-wryly observe that they are simultaneously being reminded of their personal and firm responsibilities and criticised for charging for their work in fulfilling those responsibilities. There are undoubtedly solicitors who still see disclosure as a nice little earner; there are also judges who have spent their lives pleasantly detached from the hard graft of disclosure who don’t feel disqualified from criticising its costs. The new regime must attend to both parts of this unbalanced equation].

Judges don’t have time for detailed assessment, Judge Waksman went on. Perhaps eDisclosure providers might be called upon to explain what is involved. It would be good to hear from the lawyer who is actually in charge of disclosure, he said, not necessarily the barrister or partner – it may be the associate actually running the process, for example.

The degree of engagement should reflect the amount of disclosure being sought – that is part of what is meant by proportionality.

Judges need to see what is involved in, say, de-duplication or predictive coding, so that they can see what providers are doing for the money.

[This this clearly makes sense. It will be extremely hard, however, to provide an objective description of processes when different providers have different technology, processes and terminology and are predisposed to rubbish their competitors)

In summary:

The speakers agreed that there is much hope and aspiration in the new rule. It will take time to achieve the drafters’ ambitions and it involves cultural changes for judges as well as lawyers. There will be “upset and some difficulties along the way”.

Two of the subsequent questions to stick in my mind, not least because one of them was from me.

The proposed new rule requires attention and understanding from judges. Quite apart from what is involved in giving them the necessary technical knowledge, there is already a drastic shortage of judicial time for case management. Many time-consuming difficulties and disagreements between lawyers could be resolved if it were possible to take the dispute promptly to a judge – as happens in some courts. I had come across lawyers who value that input highly, even where the conclusion was not the one they wanted – it enabled them to move on. Long waits for hearing dates conflicted with tight timetables.

Judge Waksman said (I paraphrase, slightly) that the lawyers should be able to make up their own minds and to resolve disputes between themselves without running to the court at every disagreement. Parties cannot be continually going back for multiple hearings about costs or anything else. Disclosure is part of a larger process, not something in a silo, and many decisions are going to be “rough and ready”.

[This is obviously a sensible answer in practical terms. Nevertheless, I am left with the feeling that the new rule will be predicated on an assumption as to judicial time and attention which will simply not be available].

Jonathan Maas of The Maas Consulting Group asked if there was a place for an equivalent of the US Special Master to whom the court might delegate difficult disclosure arguments. I mentioned that Sir Rupert Jackson’s first report had raised this possibility, calling such people “Assessors”; the suggestion disappeared from the second report. If my notes are anything to go by, little reaction was forthcoming from the speakers to this suggestion.

My conclusion

This was a good session and I came away from it feeling rather more positive about the new rule than hitherto, if only because it was clear that so many issues had been conscientiously considered by the working group. There will doubtless be gamesmanship of the kind that the rule is designed to prevent, but that seems to be expected by the working group as a price to be paid for cultural change.

If it were me, I would train an elite group of relevant judges and masters as a kind of task force, and allocate post-rule disclosure battles to them. That reduces the risk of cases coming before a judge who thinks that “eDisclosure” is just a new-fangled and expensive way of doing what we always did. They still exist, untouched by the new world in which almost all communications are electronic, and suspicious of anyone who suggests that the world has changed.

Remember this though: most judges have spent their lives becoming experts today on things they had not heard of yesterday – that is what barristers do. Lawyers who learn to articulate their position – the problem and the (proportionate) solution – succinctly will perhaps find benefit for themselves and their clients under the new regime.

And bang on cue…

By happy chance (though perhaps not so happy if you were involved), Coulson J delivered judgment in Triumph Controls UK Ltd & Anor v Primus International Holding Co & Ors [2018] EWHC 176 (TCC) a few hours before we gathered to hear about the new rule. Rejecting part of the complaint about the claimant’s disclosure, he accepted that another part was inadequate or, at least, that it had been inadequately explained. He said:

“I agree that both the [Computer Assisted Review] exercise, and the sampling exercise that it produced, cannot be described as transparent, and cannot be said to be independently verifiable”.

and

“the absence of any real explanation of the CAR process in this case means that it is difficult to contemplate any alternative which would not be potentially controversial. That is one of the dangers of operating a system without agreement or explanation”.

This might be seen as support for new clarity in the rules. He also, however, praised the present Practice Direction 31B….

“In my view, this is a thorough and clear PD. One of the things which it emphasises, just as Morgan J did in Digicel, is the need for discussion and agreement between the parties at the outset: see for example paragraphs 8 and 9, and paragraph 19, which stresses that, if disclosure is given without prior discussions with the other side, “the court may require that party to carry out further searches for documents or to repeat other steps which that party has already carried out.”

…although he did not apparently spot that the present PD31B is not the one referred to by Morgan J in Digicel. 

If PD31B is “thorough and clear”, do we need to replace it? Before the evening’s session, I would have said that we should leave well alone, educate some judges and tighten up the sanctions for defective disclosure. After it, I think I am persuaded that the present piecemeal rules and PDs should be replaced.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, CPR, Discovery, eDisclosure, eDiscovery, Electronic disclosure. Bookmark the permalink.

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