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The Big Story from the latest Insider: When TAR Is Not Enough – by Vince Neicho

Added on the 27th Feb 2018 at 2:11 pm
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The countdown to the new English disclosure rule is on. The consultation period expires tomorrow – at the end of February – ushering in a two-year pilot period in which the new rule will govern most proceedings in the Business and Property Courts. With the clock ticking down, I had the honour of moderating a panel for ACEDS on 7th February, which generated insightful, last-minute discourse on the new standards.

The conversation was all the more valuable forincluding, as participants, a number of individuals who have been instrumental in developing the new rule. While Lady Justice Gloster, who chaired the Disclosure Working Group, was unable to attend, the panel included: Ed Crosse, partner at Simmons & Simmons and member of the sub-committee that drafted the practice direction; Tim Brown, partner at RPC and a member of the Disclosure Working Group; Caroline Field, partner at Fox & Partners, who participated in the road testing of the Disclosure Review Document; and HH Judge David Waksman QC, judge-in-charge of the London Circuit Commercial Court. Judge Waksman is also course director of the Judicial College responsible for judges’ training.

Panel members illuminated their views on the intent behind the new disclosure rule, which grew out of dissatisfaction with the way disclosure is conducted under the current Civil Procedure Rules. Much of the discontent was with the fact that the sometimes-overbroad “standard disclosure” has remained the default in most litigation, rather than parties utilising other models from the “menu” of options offered by CPR 31.5(7). The result is a wasteful disclosure process governed by orders that do not tailor disclosure to the issues at hand.

The new rule seeks to correct this, in part, by requiring disclosure only of key documents – “basic disclosure” – while allowing parties to require more detailed “extended disclosures” on an issue-by-issue basis.

The general spirit behind the new rules came into focus for me in the panel’s discussion of the need for robust case management, the treatment of disclosing and producing adverse documents and the effect on cost budgeting. Judge Waksman was adamant that the estimates for e-disclosure costs should not be excluded from the obligations and should be produced at the appropriate time. At this point, judges accept that there is likely to be a significant line item for costs incurred by e-disclosure companies assisting in a given case. However, some judges will be surprised to see that, notwithstanding the work carried out by those providers, law firm fees are still substantial.

To some extent, those fees are inevitable. As much as we would like e-disclosure solutions to act as a panacea, they cannot be. Technology-assisted review (TAR) is wonderful, but to perform most effectively requires human management.

That said, consistent with the spirit behind the new disclosure rules, lawyers can and should look beyond technological tools as a means to reducing inefficiency in the disclosure process. Managed document review performed by reputable alternative legal service providers, for one, can bring about substantial savings and increased focus and accuracy. The managed document review company should always work collaboratively with the law firm (who would be responsible for sampling its work). While outsourcing document review will not entirely eradicate the law firm disclosure cost, the combination of TAR, managed review, and law firm expertise can bring about optimal cost savings. Most importantly, it allows the lawyers involved to concentrate on the higher-level, strategic aspects of their cases, as opposed to the disclosure process.

If this model is used to the full, the courts engage in active case management, and the culture of the parties towards disclosure changes, the new issue-based approach can dramatically improve the current situation. Here’s hoping!

* Vince Neicho, vice president of legal services at Integreon, is a recognised expert in edisclosure and document management, latterly as litigation support senior manager at Allen & Overy.

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