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BONG! Disclosure Pilot Scheme special (28 September 2020)
An informal and occasional selection of recent international eDisclosure / eDiscovery / legal IT / data protection / information governance / interesting news / articles collated by Jonathan Maas (LinkedIn profile) of The Maas Consulting Group in London. Anyone can email Jonathan@MaasConsultingGroup.com to subscribe/unsubscribe. Simply pick and click from below.
I thought it would be useful to look back through BONGs passim at reactions to and commentary on the current Disclosure Pilot Scheme being run in the Business and Property Courts of England & Wales. Yet another good reason to subscribe to my BONG!
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Litigators frustrated by "hopelessly laborious" disclosure pilot (The Law Society Gazette: Rachel Rothwell) https://maas-bong.io/2RZYzmM
"A feedback report on the disclosure pilot in the Business and Property Courts published yesterday reveals the levels of frustration felt by some City litigators towards the scheme. Lawyers branded aspects of the pilot ‘monstrously difficult’ and ‘hopelessly laborious’, with costs ‘triplicated’." This is a seriously expensive part of our civil procedure so hopefully those unhappy with the pilot so far will feed their experiences and views into the process constructively rather than try and roll back to the costly (for clients) and lucrative (for lawyers) way it was.
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Update on the operation of the Disclosure Pilot Scheme (Courts and Tribunals Judiciary) https://maas-bong.io/33QZXh4
"A sub-group of the Disclosure Working Group has carefully considered the drafting points that arise from feedback in the Third Report and elsewhere and has prepared revised versions of PD51U and the Disclosure Review Document for consideration by the Civil Procedure Rules Committee."
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Insights on virtual hearings, the disclosure pilot and witness evidence reform (Herbert Smith Freehills) https://maas-bong.io/2HnVjzu
"A panel chaired by Ed Crosse, who is a member of the disclosure working group, considered the pilot rules and the feedback received to date, as well as setting out some proposals for amendments to the pilot rules which are to be put before the Civil Procedure Rule Committee this autumn."
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Disclosure pilot creating adversarial environment, litigators fear (The Law Society Gazette: Rachel Rothwell) https://maas-bong.io/35AdaNy
"Proposals to improve the disclosure pilot in the Business and Property Courts have been drawn up amid concerns by lawyers that aspects of the scheme have created a more ‘adversarial environment’ and increased costs."
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The Disclosure Pilot and adverse documents (Exchange Chambers: Steven Fennell) https://maas-bong.io/3gqSppx
"Castle Water is the first reported case under the Business and Property Courts Disclosure Pilot to deal specifically with the steps which must be taken in relation to adverse documents. It introduces a distinction between 'checks' for adverse documents and 'searches' for adverse documents."
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Technology-assisted review and the disclosure pilot - Use of active and passive tools (Addleshaw Goddard) https://maas-bong.io/2F0GrWC
"Each case will present its own challenges, but a good working knowledge of the capabilities (and limitations) of the technologies available is important in order to ensure practitioners can guide parties through disclosure in the most defensible and cost-effective manner."
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UK’s Business and Property Courts - Disclosure Pilot Scheme extended for a further year (Freshfields: Jonathan Barnett, Sharon Grennan, Benjamin Hewson) https://maas-bong.io/2E4rwu2
"An important pilot aimed at reducing the cost and volume of disclosure in civil litigation has been extended for a further year, with the prospect of further consultation and revisions before a decision is made as to whether to introduce it into the permanent civil procedure landscape."
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Interpreting the terminology introduced by the Disclosure Pilot Scheme (Stewarts: Mike McCabe) https://maas-bong.io/3eyBJMv
"The Disclosure Pilot Scheme ... introduced some new terms into the litigation lexicon. The interpretation and scope of these terms has been developed by case law over the past 18 months."
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English High Court clarifies requirement to disclose known adverse documents under Disclosure Pilot Scheme (Herbert Smith Freehills) https://maas-bong.io/2XUPRKn
"In a recent decision the court has clarified that parties are required to undertake reasonable and proportionate checks to see if they have or have had 'known adverse documents' in order to fulfil the continuing obligation to disclose such documents under the Disclosure Pilot Scheme."
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The Disclosure Pilot Scheme: Views from the ground (Graham Jackson, Johnny Shearman) https://maas-bong.io/3073YgR
"The collaboration between the legal and technology sectors is crucial to make sure the pilot stays relevant for the industry and, above all, improves how legal services are delivered by making it more collaborative, transparent, efficient and accessible."
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Disclosure pilot “to be extended for another year” (Litigation Futures: Nick Hilborne) https://maas-bong.io/2LLLpqq
"Ed Crosse, former president of the London Solicitors Litigation Association and a prime mover behind the pilot, said it would be ‘premature’ to end the pilot as planned at the end of this year."
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Disclosure Pilot round-up: “The three Cs - Cooperation, Confidentiality and Control” (Hogan Lovells: Mbombo Simpungwe-Kaoma) https://maas-bong.io/3adxmV5
"After a dearth of decisions in the early months of the Disclosure Pilot, judges have begun lining up to add to the growing body of commentary on best practice for litigants."
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The Disclosure Pilot Scheme: Are parties misunderstanding how the pilot scheme is intended to work? (London Legal: Johnny Shearman) https://maas-bong.io/39FmRJY
"Taking the unusual step to deliver a judgment following a Disclosure Guidance Hearing, the Chancellor of the Hight Court, Sir Geoffrey Vos, has provided further guidance as to how the Pilot Scheme is meant to operate."
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The disclosure pilot: one year on (LinkedIn: Giles Wheeler [Fountain Court Chambers]) https://maas-bong.io/2w4UlCw
"The two-year disclosure pilot has now been in operation for just over a year. The halfway point of the pilot, coupled with some important recent guidance given by the Chancellor, Sir Geoffrey Vos, provide an opportunity to consider how the pilot has been operating and what lessons have been learned from its first year."
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The Disclosure Pilot: Narrow focus of disclosure issues and not using the disclosure pilot as an offensive weapon (eDisclosure Information Project: Chris Dale) https://maas-bong.io/38S2vNj
"It should not be a mechanical exercise of going through the pleadings to identify issues that will arise at trial for determination. Rather it is the relevance of the categories of documents in the parties’ possession to the contested issues before the court that should drive the identification of the Issues for Disclosure."
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The Disclosure Pilot: Guidance given as to how it should work (not a stick with which to beat your opponent) (Civil Litigation Brief: Gordon Exall) https://maas-bong.io/2SyKnSD
"Cooperation between legal advisers is imperative. The Disclosure Pilot must not be used as an opportunity for litigation advantage. If that is attempted, the parties responsible will face serious adverse costs consequences."
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Latest court decision highlights level of scrutiny courts apply to Disclosure Pilot Scheme cases (Lawyer Monthly: Johnny Shearman [Signature Litigation]) https://maas-bong.io/2tSDli3
"A recent decision highlights the level of scrutiny the court is prepared to take when deciding whether an order for additional disclosure should be granted under the Disclosure Pilot."
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Disclosure pilot: A model for success? (FRP Advisory: Steven Bain) https://maas-bong.io/3bjxGm2
"Has the Disclosure Pilot Scheme proven a welcome change for the legal sector?"
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The Disclosure Pilot Scheme: An analysis of the latter half of 2019 (Stewarts Law: Angela Milner) https://maas-bong.io/2unMe3v
"The Disclosure Pilot Scheme has been in force since 1 January 2019. Angela Milner examines the key case law and guidance emerging from the courts and (in some instances) from the Disclosure Working Group itself."
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Disclosure Pilot Scheme: What are "narrative documents"? (London Legal: Johnny Shearman) https://maas-bong.io/31hzZlf
"In short, narrative documents provide additional detail, which strictly may not be relevant to the issues for disclosure but do help tell the story of the dispute within its factual matrix."
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High Court guidance on whether mention of a document in a witness statement is enough to warrant disclosure (Charles Russell Speechlys: Simon Heatley) https://maas-bong.io/38JHBiN
"Both CPR 31 and Practice Direction 51U entitle a party to see a document that has been ‘mentioned' in a witness statement. There has been much debate in case law and commentary as to what ‘mention' means so as to give rise to this entitlement."
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High Court emphasises need for parties to agree disclosure search methodology and terms in advance (Herbert Smith Freehills: Anna Pertoldi, Maura McIntosh) https://maas-bong.io/2PNYDoc
"In a recent decision, the High Court refused to order the defendants to disclose further documents, beyond the 95 documents they had already produced under an order for standard disclosure, or Model D disclosure, under the disclosure pilot."
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The Disclosure Pilot Scheme: Is the Disclosure Review Document a help or a hindrance? (London Legal: Johnny Shearman) https://maas-bong.io/2DUEqqV
"The DRD must be completed if at least one party seeks an order for Extended Disclosure (i.e. disclosure which goes beyond that which is required under the Pilot Scheme when pleadings are served, as well as known adverse documents which are required to be disclosed at a later stage in any event)."
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QMUL questionnaire on the Disclosure Pilot extended (Queen Mary University of London) https://maas-bong.io/35Wpfuk
"In order to accommodate some requests for extension, the submission deadline has been extended until Friday 29 November 2019."
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The Disclosure Pilot (Practice Direction 51U): What have we learnt so far? (Addleshaw Goddard: Hannah Bradley) https://maas-bong.io/2N3BsEY
"Given the profile and importance of the Pilot, recent court decisions with guidance as to how it is to be interpreted and applied are of great interest to those dealing with disputes. Some of the key decisions in relation to the Pilot are summarised in the article below."
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Disclosure Pilot in the Business and Property Courts (Queen Mary University of London: Professor Rachael Mulheron) https://maas-bong.io/35Wpfuk
"As the Disclosure Pilot nears the end of its first year of operation, Professor Mulheron has prepared a questionnaire to assist with the monitoring exercise. For those who have had experience of the Pilot (no matter how large or how small), you are invited to take the opportunity to provide feedback on your experiences, by completing the questionnaire to the extent that you are able to do so."
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The disclosure pilot - making better use of the Disclosure Guidance Hearings (eDisclosure Information Project: Chris Dale) https://maas-bong.io/32jCGCb
"The court needs to hear from the 'legal representative with direct responsibility for the conduct of the disclosure process'." That is, the person with the problem not some partly tuned-in legal representative.
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What we learnt about the Disclosure Pilot 10 months in (Legal IT Insider: Vince Neicho [Integreon]) https://maas-bong.io/35cU3GK
"This is a long road and it is not until the current cases to which the Pilot is being applied have reached their conclusion that we can assess disclosure costs and form a view as to whether they would have been greater had the Pilot not been applied."
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Session notes: The Disclosure Pilot 10 months on (eDisclosure Information Project: Chris Dale) https://maas-bong.io/2IxOv02
"I was left with the impression that much of the muttering which was heard at the start has died down and that, although there is still some resentment (not least from clients) about the front-loading of costs, there are few, if any, who would go back to the old way of doing things."
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Integreon panel in Bristol: Technology, judges and discovery (eDisclosure Information Project: Chris Dale) https://maas-bong.io/30cxEFX
"The disclosure pilot is a good attempt at dealing with the practical implications of a subject whose underlying implications are changing in every direction. The growing volume of data is only the start: technology brings us new ways of communicating, in new file formats stored in different places. The intermingling of personal and business data coincides with a greater focus on privacy and data protection. Data crosses borders, raising both practical and jurisdictional issues.”
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The disclosure pilot: What's the point? (London Legal: Johnny Shearman) https://maas-bong.io/30gyIJ2
"Commenced at the beginning of this year, arguably the Pilot Scheme is one of the most significant procedural developments in English litigation post the implementation of the Jackson reforms back in 2013."
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UK pilot programme demands technology-assisted review (TAR), or does it? (JD Supra: Epiq) https://maas-bong.io/2TAsguC
"While TAR is a useful tool, it is not appropriate in every case. Here are some reasons why parties may decide to forego using TAR."
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Shaping landmark litigation disclosure reforms in England and Wales (Outlaw: Richard Dickman [Pinsent Masons]) https://maas-bong.io/31e9vjf
"We are now six months into a two-year pilot of a new litigation disclosure regime in the Business and Property Courts in England and Wales, and those responsible for it are seeking feedback on its operation."
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Video: Disclosure Pilot Scheme (RPC) https://maas-bong.io/2VMxIK7
Lawyers Dan Wyatt and Matthew Evans discuss how the UK's Disclosure Pilot, started at the beginning of 2019, encourages the use of technology.
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Further clarity provided on the application of the Disclosure Pilot (Enyo Law: Jessica Howard, Olivia Gare) https://maas-bong.io/2V9MmuJ
"In this second blog article concerning the application of the Disclosure Pilot, we consider two recent High Court decisions which have provided further guidance as to its interpretation."
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UTB v Sheffield United - interpreting PD51U in a way that makes it work (Chris Dale) https://maas-bong.io/2IUEuuS
"It came as a surprise to many that the disclosure pilot in the new PD51U took effect on 1 January 2019 in relation to all relevant applications thereafter, whatever the date of issue."
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Disclosure pilot applies even if order made before January 2019 (Litigation Futures) https://maas-bong.io/2VOuc2K
"The disclosure pilot applies to all Business and Property Courts proceedings, including cases where a disclosure order was made before 1 January 2019, the Chancellor of the High Court has ruled. Sir Geoffrey Vos said the newly published White Book was wrong on this point."
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PDF: The Business and Property Court has just published a helpful note to clarify whether the UK's Disclosure Pilot Scheme applies to Part 8 claims (Ed Crosse) https://maas-bong.io/2HVtw7L
It's great to see that the pilot disclosure rules are living and breathing and not just lying stagnant for the next two years. It would be even better to hear of strong judicial project management.
By the way, we have noticed that sometimes the links we compile above have registration/paywall information inserted between the referenced site and you. At the time we compose these emails there are no such distractions so we can only assume sites randomly impose registration/payment requirements on links to them. We apologise in advance as our intention is to give you all untrammelled access to this information.
(Incidentally, and for those outside the UK (or in the UK but without televisions), BONG! is a reference to the main evening TV news in the UK, on which headlines are read out between strikes (bongs) of the now-silent Big Ben, the bell in the Elizabeth Tower (renamed from the Clock Tower in honour of the Queen's Diamond Jubilee) at the Palace of Westminster. You can thank a particularly persistent pedant early on in the life of the BONG! for this rather precise explanation.)