Most documents are being handled electronically. Hence, disclosure in large litigations typically involves a review of millions of documents, making it one of the most costly and time-consuming obligations in legal cases. While the courts have long been investigating the best ways to conduct document disclosure in civil litigation processes, solicitors and parties feel constrained due to the slightly outdated procedural rules.
To address this problem and reduce the time and cost burden associated with electronic disclosure, a two-year Disclosure Pilot Scheme (DPS), set out in CPR 51U, came into operation in the Business and Property Courts in England and Wales on Jan 1, 2019.
In this guide, we’ll look into the procedure of the disclosure pilot scheme.
Disclosure Obligations of parties
The disclosure pilot scheme outlines the duties of both parties and solicitors involved in a case. Based on the best practices and the duties under the current regime, the DPS compiles all obligations in one place. Following are the parties’ obligations that extend throughout the case:
- Preservation of documents relevant to the issues in the case
- Complying with every order the court issues regarding disclosure
- Disclosing all known adverse documents, unless they are privileged
- Carrying out a search in a conscientious and responsible manner
- Doing their best to avoid disclosing documents not relevant to the opposing party
- Staying honest while disclosing documents and reviewing those disclosed by the opposing party
Disclosure Obligations of Legal Professionals
According to the DPS, the legal representatives of parties have the following duties:
- Taking necessary steps to preserve documents that are in control
- Taking necessary steps to counsel and help their client to comply with their disclosure duties
- Connecting and cooperating with solicitors or associates of other parties
- Staying honest throughout the disclosure process
- Conducting a thorough review to ensure that any privilege claim is made properly and is backed by sufficient explanation.
A party must give initial disclosure of key documents at the stage of filing and serving its particulars of Defence or Claim. With a cap of 200 documents or 1000 pages, whichever is larger, the initial disclosure is meant to be a light-touch first step. No search beyond what’s already undertaken is required.
The disclosure should cover all key documents the party has relied on to prepare its statement of the case as well as those required to ensure that the opposing party understands the claim or defense they need to meet. The party must serve a list of documents, which must also be in electronic format. There are circumstances, however, when an initial disclosure won’t be necessary.
The extended disclosure is considered after the initial disclosure if parties feel the need. Within 28 days of reviewing the documents already disclosed, the parties must state, in writing, whether they feel that further disclosure is required. An extended disclosure is only ordered when it can help resolve an issue within the case.
To request an extended disclosure from the court, a joint Disclosure Review Document (DRD) must be submitted by the parties. The document must list down the ‘Issues of Disclosure’ in the case, the proposal for an extended disclosure, along with the model, and details about how documents are stored.
When identifying a model of disclosure for an issue, it’s not necessary that parties agree on a single model of the disclosure. For a single issue, different models can be applied for the claimant and the defendant. The main objective of parties and the court to decide on a model should be to limit the required number of searches and the volume of documents to be disclosed. The choice mustn’t lead to undue complexity that raises the costs of electronic disclosure. Here is an overview of the 5 models of disclosure:
- Model A: Disclosure is limited to known adverse documents. A DRD won’t have to be submitted by parties in this case.
- Model B: This model involves Limited disclosure of documents with the same criteria as for initial disclosure except that there’s no limit on the quantity as well as the disclosure of known adverse documents. No search beyond what’s already undertaken is required for parties. If a party does carry out a search, the duty to disclose the concerned documents applies.
- Model C: This model includes a request-led, search-based disclosure. Similar to the approach seen in international arbitration, it’s an order to disclose narrow classes of documents or particular documents in response to a request from the opposing party. Again, known adverse documents are also included in the disclosure.
- Model D: This model is referred to as narrow search-based disclosure that may or may not include Narrative Documents. Proposing this model means each party will carry out a proportionate and reasonable search pertaining to the applicable issues. A Narrative Document is not directly relevant to the issues of disclosure but to the context or background of the material events or facts.
- Model E: This model entails wide search-based disclosure in which a full train of inquiry takes place, something that’s ordered in only an exceptional case. Under this model, parties are required to disclose documents that can support or adversely impact their claim or defense, or the stance of the opposing party with respect to the issues of disclosure. Both Narrative Document and known adverse documents must be disclosed.
While the Disclosure Pilot Scheme was due to be incorporated into the civil procedure rules in 2 years, its initiation has been further extended until the end of 2021. This decision was made to provide more time for practitioners to share feedback and back the pilot to achieving its objectives. Hopefully, the scheme will meet its goals of addressing the difficulties in modern litigation and help reduce the costs and time associated with it.
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