The English Disclosure Pilot is into its home straight. The global pandemic has delayed (amongst other things) the report of the official pilot monitor, Professor Rachael Mulheron. To fill the void many practitioners are doubtless suffering, we’ve recapped the salient points of our webinar earlier this year. Updated Guidance on Data Sources and Strategies for Section 2 of the Disclosure Review Document sought the opinions and practical experience of experts from the tech and legal side of the fence.

Whilst itself relatively recent, the concepts underpinning the Disclosure Pilot are well traversed. Lord Woolf’s desire to move English courts away from “kitchen sink” disclosure in the 1990s was at odds with the sheer speed at which new technology enabled information to be created and recorded. Lord Justice Jackson better understood Big Data was a significant problem for the judicial system. Practice Direction 31B, the Electronic Document Questionnaire, was introduced into the CPR. He warned that technology could not go it alone and required the close liaison of expert technology consultants and legal teams.[1]

So, has this overhaul of disclosure rules and guidance achieved a cultural shift? Has it allayed the growing concerns on the cost, scale and complexity of disclosure? Are we, an international disputes centre, better equipped to deal with the amounts of data which multinationals bring to the table?

Preparation, Collaboration and Disclosure Models

It is clear that parties are now required to spend more time on identification of issues for disclosure and assessment of data and documents at an earlier stage of the proceedings. There has been an increase in the work carried out during initial stages of the disclosure process as well as an increase in pre-CMC correspondence. Lawyers must involve technologists earlier to help them understand the data-centric issues, which must be presented in the DRD. The need for preliminary and more detailed cost budgeting also necessitates a better understanding of the downstream effects of data types and volumes. Judicial guidance has underlined the point. A notable example of this is in the McParland v Whitehead case during the disclosure guidance hearing, when Chancellor of the High Court Sir Geoffrey Vos made his expectation clear that the parties should be collaborative and that the pilot was not meant to be used as a stick to beat opponents with, as well as warning that this approach could lead to being hit with an adverse costs order.

The new approach to collaboration does not mean that the pilot and DRD cannot be used as an effective litigation strategy. Quite the opposite. As with any change in regulation, those best informed can make best strategic use. A particularly good example is use of the new disclosure models in Section 1 of the DRD. As expected, clients/practitioners are defaulting to the models they are most familiar with, notably model D, which echoes standard disclosure. However, if a party is aware of the presence of documents relating to a specific issue, a well-drafted Model C request (akin to a Redfern Schedule) has also been used frequently. The tendency to lean in to the known is at odds with the “cultural shift” sought but will no doubt continue to be the default. Attempts to leverage the outlying models have already shown the bar has been raised somewhat. In Kings Security Systems Ltd v King [2019] EWHC 3620 (Ch) whilst the court avoided ruling on the scope of Model E (no order was made), it was reiterated that Model E should only be used in exceptional circumstances. Furthermore, it must give rise to further issues, not only documents.

Navigating Section 2

Section 2 of the DRD is very much a forensic technology–related record. Ironically, some of the most informative guidance contextualising this section appears in Section 3. For example, electronic documents should be collected in a format that preserves and does not alter the underlying document metadata when possible. The onus is on parties to ensure that they engage appropriate IT forensic expertise to assist with the process if they or their legal advisors do not have that expertise, and that they keep appropriate methodology records. This is very much in line with the core principles for handling digital evidence which were first published in the UK by ACPO in the late 1990s, as well as the more recent UKAS guidelines.

It has long been the case that forensic technology practitioners scope data collection at the earliest opportunity. Typically, this is done through conversations with a representative of a party’s IT team, or by submitting a questionnaire that allows the party to provide insight in the data universe. Historically, end clients are hesitant to give forensic specialists (or their lawyers) access to their systems. The early stage at which the DRD needs completing has definitely focused the minds of some end clients.

Technology has moved at a rate of knots in recent years. A decade ago, the majority of users of electronic documents did so via conventional mediums such as email messages and fairly standard documents and file types which would generally reside in straightforward locations. Social media and other forms of communication were in their infancy. Today, many users communicate and work together using a wide range of other mediums, many of them not based around files and folders in the conventional way that we understand them. Strategically, if one party understands its data footprint AND the rules governing its disclosure, it is much easier to guide both the opposing party and court through the process. Section 2 is an early indication of the document universe and what a party’s legal team might be expected to review and therefore propose as their approach to disclosure. However, there will always be disagreements around issues such as which custodians and devices are within scope. If a party is unable to be accurate in their explanations in section 2 by the time of the first CMC, they risk challenges being made on their proposed approach, resulting in further hearings and higher costs.

The New Normal?

COVID-19 has resulted in a much wider use of remote collections to preserve data. Whilst remote collections have been in use for many years, in the past data preservation would usually require an in-person visit to the parties. This approach has become impractical due to the risk of spreading the virus and because most offices have been closed. Being sat next to a client to preserve their data is not always necessary, and courts are anxious to keep to existing timetables wherever possible whilst working remotely, resulting in this uptick in remote preservations.

Successful navigation of Section 2 will depend largely on the level of access which one has to their client. If a party is a large institution with a sophisticated internal IT function, the challenge is ensuring that the right people are being spoken to as early as possible and understanding the universe of data. When a party is a smaller entity or a high net worth individual, the challenge is more likely to be helping them to understand exactly what is required, as procedure will potentially be daunting to them.

It is possible to be fairly high level with the information provided in Section 2, and the pilot makes that clear. However, it can be advantageous to provide more detail, showing that you are on top of the issue. If the opposition comes back with a vague Section 2, it provides the opportunity to attack their approach, contrasting it with your own understanding of the data. It is therefore recommended to have suitable experts, at the earliest opportunity.

Conclusions

• Data is important. As lawyers, it is impossible to advise without appreciating the context and information available.
• The DRD has definitely encouraged parties and the courts to consider the implications of data more seriously. Hopefully this will lead to a cultural change, but we’re not there yet. Parties still try to default to what they know, and the courts will likely follow their lead. However, the changes aren’t going anywhere, and they aren’t getting simpler, so it’s important to be well informed.
• As with any procedural change, practitioners who verse themselves well simply add another strategic weapon to their armoury. If you understand it, plan for it and deploy it intelligently – the DRD can make life extremely difficulty for an uninformed opponent seeking to hide behind procedural flexibility.