The civil courts in England & Wales have long struggled with how best to deal with the disclosure of documents in modern civil litigation. Challenges around the volume, variety and velocity of electronically stored information (ESI) in the disclosure process have for some time been seen to conflict with the civil courts’ overriding objective of dealing with cases justly and at proportionate cost, as set out in the Civil Procedure Rules for England & Wales (CPR).
As most documentation is now electronic, disclosure is often one of civil litigation’s most expensive and time-consuming stages. Many of the challenges relating to disclosing ESI in civil litigation are found in the handling and review of unstructured data, including emails, chat, social media content, PDFs, word processor documents, spreadsheets, and audio/video (A/V) files.
An attempt to solve the problem was originally made in the 2013 Jackson Reforms to the CPR, but it became clear that this existing framework was not working, as the cost, scale and complexity of disclosure had become disproportionate to the issues and the value of disputes. We have therefore seen the introduction and evolution of the Disclosure Pilot Scheme (DPS).
The Disclosure Pilot Scheme
The DPS is a two-year program, now extended to four, that was implemented in 2019 as a new Practice Direction 51U to the CPR (PD51U). The DPS replaces the current rules under CPR Part 31 (Part 31) and applies, with a few exceptions, to both new and existing proceedings throughout the Business and Property Courts in London, Bristol, Birmingham, Cardiff, Leeds, Liverpool, Manchester and Newcastle.
The intent of the DPS was to prompt a meaningful and fundamental shift in how civil litigation disclosure is conducted by setting out, inter alia, the disclosure principles, along with the duties of the parties and their lawyers, including the duty to preserve.
There have been some changes made along the way as a result of feedback to the working group, and there will undoubtedly be more. Whilst sentiments as to its current effectiveness and practicality are mixed amongst the community it is targeted to serve, it seems inevitable that the DPS will eventually become permanent in some form in the face of Part 31’s de facto obsolescence, and there will undoubtedly be more changes before the rules become permanent.
The Use of Technology
A theme that flows throughout the DPS is using technology to reduce the burden of disclosure, and the obligation to cooperate around its use.
Consideration must be given, for example, to the use of software or analytical tools, including workflow and coding strategies, technology/ computer-assisted review (otherwise known as TAR/CAR), email threading, deduplication, near-duplicate identification, concept clustering and foreign language analysis, even before the Case Management Conference.
Whilst technologies including those listed above are mentioned, the Disclosure Review Document, which is an important part of PD51U, makes it clear that parties should not feel constrained from proposing new forms of technology which may be developed in the future, and which may be appropriate for use in any given case.
How Everlaw Can Help
Everlaw consistently strives to achieve its company mission by delivering on our core values of partnership, expertise and technology. Concentrating on these values ensures that Everlaw will provide an effective solution and exceptional experience to all our customers.
Focussing for the purposes of this blog on technology, Everlaw’s feature-rich toolbox includes the following functionality that has the potential to help with your DPS matters:
Integrated legal holds. To help drive conformance with document preservation duties.
Rapid ingestion and processing of ESI. Including automating the extraction of attachments, deduplication, text recognition, creating search/ analytics indices, machine transcription of a/v files and the identification of near duplicates and foreign languages.
Understandable document clustering. Unsupervised machine learning to assist with unknown and less well-known document sets of particular application in instances of front-loaded document exploration exercises, together with later stage quality control.
Easy-to-use TAR/ CAR. Supervised continuous active machine learning to help to optimise leveraging key members of your team and to accelerate review workflows.
Powerful search and visualisation functionality. Allowing near-instantaneous visibility into your documents when investigating your dataset and agreeing search terms.
Storybuilder. To seamlessly build case chronologies and narratives, set out review strategies, manage key issues for disclosure and create draft bundles.
Request a demo today to find out more about how Everlaw can help streamline your organisation’s ESI disclosure process.