Thursday February 6, 2020
Legal arguments live and die by the quality of evidence presented by the parties to a dispute. Yet, as technology has evolved, the way in which we gather evidence has changed at a dramatic pace – no more so than in the last decade. Indeed, in the era of ‘big data’, it’s fair to say we have reached a juncture where the vast amount of digital information we store and how that is treated in disclosure exercises is critical to how cases evolve.
In response, the eDiscovery industry has developed rapidly, helping to identify and present digital evidence for use in investigations and legal disputes, such as in the context of litigation, employment tribunals or cases of bribery and corruption for example. But, in the digital age where businesses are increasingly hosting vast quantities of data, finding the pertinent information can be an enormously time consuming and potentially a costly process.
In response the Ministry of Justice introduced a Disclosure Pilot Scheme (DPS) in January 2019 in the Business and Property Courts to provide more structure and guidance around the disclosure process. The changes are being trialled over a two-year period and, given we are halfway through that process, now is a good time to assess the initial impact of the scheme.
The goal of the DPS is to simplify the process and provide guidance from the outset between the parties on what data is to be collected and agree how this data will be searched and used. This is done by providing a framework that has to be agreed between the parties as part of the Disclosure Review Document (DRD) process.
Typically, a disclosure exercise may previously have involved – metaphorically speaking – opening the door to a business and searching every room possible before disclosing what is to be put forward as evidence. When you consider just how much digital information is stored on servers, cloud networks, hardware and electronic devices – from emails to the metadata that accompanies them (for example, the times that an email was sent, read and received) – it quickly becomes apparent how lengthy a process that can be. It also has the potential to be disproportionate depending on the resources available to all parties and the value of the dispute.
Under the DPS, legal teams are compelled to agree up front with the opposing party or parties how they are going to conduct the document review. For example, if they envisage finding the relevant documents they are looking for in certain areas of the business, they may agree to rule out searching other areas. As a result, the scope of investigations can be determined from the outset and the days of teams trawling through large ‘document dumps’ may be at an end.
The case for agreeing these search parameters in advance is a strong one – particularly as the pilot puts an onus on parties to give greater consideration to, and holding discussions on, how they want to proceed. It can also serve to outline the strength of each party’s argument in advance during initial disclosure, reducing the likelihood of extended disclosure which can be an expensive, drawn-out affair.
However, the new guidance is not without challenges. Ultimately it frontloads the process and, from our experience, is something that the industry is adapting to. For example, coming to an agreement over which model to adopt for a particular issue and the types of evidence planned for disclosure is a delicate game of strategy and can result in lengthy discussions up front with the opposing parties – thereby reducing the projected cost benefits envisaged by the DPS and increasing the challenge of managing clients’ expectations.
The new levels of conjecture developing at this point are perhaps unsurprising as, in some instances, legal teams can be in the dark without much indication of the relevant documents they are likely to find and where. When they do eventually begin to conduct meaningful searches and document review, they may discover other relevant lines of investigation that require them to negotiate changes to the previously agreed criteria. In some instances, the model agreed pre-disclosure may be too rigid to allow them to change tack, so negotiating the right strategy up front is imperative.
From our perspective, we’re working closely with legal teams from the outset to help them negotiate and plan an effective strategy when approaching disclosure agreements.
The DPS has been sourcing feedback and an update is expected in the near future, which we anticipate will see the existing models refined. In our view having processes in place to better manage cases is essential to avoid the potential for a disorganised, undirected and costly disclosure exercise, particularly as legal teams are adapting to the new standards.
From a practical standpoint, my advice would be to seek the guidance of others, particularly those legal and technical contacts – be they in your firm or your network – who have been through the DPS process. The onus on getting off to a good start and setting the foundations to your case is key.