Updated Disclosure Pilot Guide

Earlier this year the Disclosure Working Group announced further changes to the evolving Practice Direction 51U and the rules of Disclosure in the Business and Property Courts, also referred to as the Disclosure Pilot Scheme (DPS).  The changes are now in effect and mark yet another extension of the Disclosure Pilot until 31 December 2022.

Here at Sky Discovery we have outlined some of the key elements of this latest round of changes with a practical guide on the order of events and key timelines.

What are the amendments?

The substantive amendments are as follows:

  • Claims of less than £500,000 can now follow a “Less Complex Claims” route With a new form of DRD
  • Complex multiple party cases can now be run more flexibly, either extending or reducing the DRD and timetable.
  • The List of Issues for Disclosure must be streamlined with an explicit requirement for it to be as short and concise as possible.
  • The timing for a party to respond to a draft List of Issues is now 21 days (it was 14 days)

What is the impact?

The impact that the DPS changes will have on the Disclosure process will undoubtedly become clear over the course of the next 12 months, but the continuing refinement of the Pilot Scheme shows that the changes have been positive and what is happening now is that the rough edges are being smoothed out.

The fact that “small claims” and “multi party Claims” are being considered shows that the plan is to ensure that all matters, regardless of size or complexity, are following the same guidelines but importantly are not being forced into following a structure that simply does not work for specific cases.

From an eDiscovery point of view the changes mean practice support teams and service providers will need to continue to refine the workflows for disclosure and develop innovative processes to assist their clients.

Summary of the current DPS Rules

Following the most recent changes we have summaries in the table below the key components of the rules which should be considered in contrast to the former CPR Part 31 rules. It details the stage in proceedings, summarising the actions, time limits and upon whom the responsibility lies with.

Phase of Proceedings

Time Limit

Responsible Part(y)(ies)

Litigation in Contemplation

Preservation of Documents
·Legal representatives who have conduct of litigation on behalf of a party must “to take reasonable steps to preserve documents within their control that may be relevant to any issue in the proceedings;” (3.2(1))
·Communicate legal hold notice in writing, identifying the documents to be preserved and notify the recipient that documents must not be deleted or destroyed and should take reasonable steps to preserve them(4.2(2)); 4.3; 4.4(1)
·An appropriate representative within the part(y)(ies) or organisation should confirm in writing that steps have been taken to preserve the documents (4.2(2))

“Within a reasonable period” – 4.4 Claimant and Defendant

Statement of Case

Preservation of Documents

Each party must confirm in writing when serving their particulars of claim or defence (as appropriate), that steps have been taken to preserve relevant documents. 4.5

Initial Disclosure

Each party must provide to all other parties at the same time as its statement of case an Initial Disclosure List of Documents that lists and is accompanied by copies of—

(1) the key documents on which it has relied (expressly or otherwise) in support of the claims or defences advanced in its statement of case (and including the documents referred to in that statement of case); and

(2) the key documents that are necessary to enable the other parties to understand the claim or defence they have to meet.

Except:

The parties may agree to dispense with initial disclosure. In this case the reasons for doing so must be made available at CMC – 5.3(1), 5.8.

·an application to the court to dispense with initial disclosure may be made (although the default will be that initial disclosure is required) – 5.3(2), 5.10

·If initial disclosure would exceed 1000 pages or 200 documents (whichever is larger) then it will not be required – 5.3(3)

Initial Disclosure
Must be provided at the same time as the statement of case – 5.1
Claimant and Defendant

Preparation for the CMC

Extended Disclosure – 6.1 This means any disclosure of documents sought or ordered in addition to Initial Disclosure.

Extended disclosure is not automatic and must be specifically requested by a party.

There are five “Models” of extended disclosure. Different models can be requested for each issue.

Parties will be expected to complete a Disclosure Review Document to request extended disclosure.

To be completed before the CMC:

· File/serve a Notice that Extended Disclosure will be requested

· Finalise and file a Disclosure Review Document (“DRD”) and Certificate of Compliance

Models of Extended Disclosure

Model Description / Disclosure Type DRD Section
A Disclosure confined to known adverse documents N/A
B Limited disclosure N/A
C Disclosure of particular documents or narrow classes of documents. 1B & 2
D Narrow search-based disclosure, with or without Narrative documents (this is the closest to the old “standard disclosure”) 2
E Wide search-based disclosure or train of enquiry style 2

Identifying Issues for Disclosure – 7.1

Within 28 days of the final statement of case each party should state whether or not it is likely to request search-based extended disclosure (Models C, D or E). At this point it is not required to state the models or issues.

If one or more party is requesting search based extended disclosure, the Claimant must within 42 days of the final statement of case prepare and serve a draft List of Issues for Disclosure (unless an agreed list of issues for trial already exists and is suitable for disclosure).

The draft List of Issues should be set out in Section 1A of the Disclosure Review Document.

A List of Issues for Disclosure is not required if the parties are agreed that Extended Disclosure is to be confined to Models A and B – 7.2.4

The List of Issues for Disclosure should be:

· Short and concise – 7.3

· Issues for disclosure should be limited to ONLY those the parties consider the parties will need to be determined with reference to contemporaneous documents. – 7.3

· This is NOT required to be every issue which is disputed in the statements of case 7.3

Complex Multi-Party Cases

Where a complex multi-party claim means that the risk of undue complexity in the List of Issues is heightened, parties can make an application for a bespoke timetable and procedure to be set that meets the needs of a multi-party case – 10.2

In a complex case, the Disclosure Review Document may be modified (shortened or lengthened). This may also include revising some questions. Not every section of the DRD will need to be completed – 10.2

Notice that Extended Disclosure will be Requested

28 Days from the final statement of case – 7.1

(Draft) List of Issues for Disclosure

To be prepared and served within 42 days of the final statement of case – 7.2

DRD

A party served with a draft List of Issues for Disclosure and proposals on Models shall, as soon as practicable but in any event no later than 21 days from service, indicate using Section 1A (and, if applicable, 1B) of the Disclosure Review Document whether it agrees with the proposals – 7.5

Known Adverse Documents

If an order for Models B, C, D or E Extended Disclosure is made on one or more issues for disclosure, any known adverse documents are to be disclosed at the time ordered for that Extended Disclosure.

In a case where no order for Extended Disclosure is made that party must still disclose known adverse documents within 60 days of the first case management conference and provide a Disclosure Certificate.

The parties should prepare and exchange Section 2 of the DRD (including cost estimates of different proposals and number of likely documents involved) as soon as practicable and no later than 14 days before the CMC.

Claimant and Defendant

Claimant (if any party has provided notice that Extended Disclosure will be requested)

Claimant and Defendant

Claimant and Defendant

Disclosure Searches

Where the disclosure model requires searches to be undertaken, the parties must seek to agree; and the court may give directions on the following in order to reduce the burden and cost of disclosure:

  • That the scope of the searches required to be undertaken are limited to:
    • Particular date ranges
    • Particular custodians
    • Particular classes of documents or file types
    • Specific repositories or geographical locations
    • Specific computer systems or storage devices
    • Documents responsive to specific keywords
    • Other automated searches
  • If Narrative Documents are to be excluded, how that will be achieved in a reasonable and proportionate way.
  • The use of:
    • Software or analytical tools such as technology assisted review software
    • Coding strategies including how duplication will be reduced
    • Prioritisation workflows
  • The court may include any provisions appropriate including:
    • Using specified software or tools
    • Identifying duplicates or near-duplicates and removing these
    • Use of sampling
    • Specifying the format in which documents are to be disclosed
    • Using a staged approach

Excluding certain classes of documents

Claimant and Defendant

The Disclosure Review Document

Completing the DRD – Section by Section

Section Function
1A Identify issues for disclosure following close of pleadings
1B Set out any requests for disclosure under model C
2 Where any party chooses Models C, D, or E the document landscape needs to be described

 

Certificate of Compliance

Once the DRD is filed, a signed Certificate of Compliance is to be filed at Court.

A finalised single joint DRD Should be filed by the Claimant no later than 5 days before the Case Management Conference 10.7

 

 

 

The parties must each serve a Certificate of Compliance not less than 2 days before the Case Management Conference – 10.8

Claimant

 

 

 

 

 

 

 

 

Claimant and Defendant

CMC

The Court Will make an order for disclosure.

There is no presumption that a party is entitled to search-based Extended Disclosure (Extended Disclosure Models C, D and/or E) – 8.2

The Court may order different models for different parties or issues.

CMC takes place following completion of the DRD. Claimant and Defendant

Disclosure Guidance Hearings

Can be requested at any time prior to or following the CMC.

A party may seek guidance from the court on any point where:

  • There is a significant difference of approach between the parties
  • The parties require guidance to address that difference
  • The point is suitable to be determined in the maximum hearing length of 60 minutes.

This hearing must be attended by the legal representative with the direct responsibility for the conduct of disclosure.

Maximum hearing length of 60 minutes and 30 minutes for pre-reading.

The court may decide to deal with an application on documents only without an oral hearing or extend the time where required.

Claimant and Defendant

Less Complex Claims

There is a new simplified disclosure regime for Less Complex Claims.  A Less Complex Claim is less than £500,000 and is by virtue of its nature, value, complexity and the likely volume of Extended Disclosure may not benefit from the full procedure set out in the main body of PD51U – Appendix 5 Paragraphs 3, 4.

 

The Simplified Procedure is as follows:

  • A Less Complex Claims Disclosure Review Document (“LCCDRD”) will be used.
  • Extended Disclosure will be given using Models A, B or D Only.
  • If the parties are only proposing Models A and/or B then there shall be no requirement to identify the Issues for Disclosure or complete a DRD (although they may agree to do so if they wish) – Appendix 5 10.3
  • The Issues for Disclosure should rarely exceed 5 and should not include sub-issues – Appendix 5 10.4
  • All provisions of the main body of PD51U apply including Known Adverse Documents apply to Less Complex Claims.
Timetable as per above. Claimant and Defendant.

 

Note that if the Claimant does not intend to seek extended disclosure, the Defendant (or one of the Defendants if multiple) may agree that the defendant shall be responsible for producing the LCCDRD.

If you are interested to discuss Sky Discovery’s innovative workflows that assist lawyers with the latest Disclosure Pilot rules, please contact the team at sales@skydiscovery.co.uk to arrange a consultation.

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