The Disclosure Pilot Scheme (the Scheme) – which governs the procedural rules of disclosure in a significant number of civil cases in England & Wales – was introduced to bring about a 'culture change' to how disclosure is approached[1]. We are now two years into the Scheme’s now four year pilot with scrutiny from the courts, parties and observers. One area that has seen change over that time has been how the role of forensic technology experts in disclosure has developed. It is impossible to determine with precision to what extent this has been caused by the Scheme as opposed other shifts in litigation and disclosure processes. However, in this article Burges Salmon and FRP Advisory identify how forensic technology experts’ roles in disclosure have changed in recent years by considering three key issues: the Scheme; proliferation of client data; and changes to the technology used to undertake disclosure.
The Scheme - evolution and revolution
In many respects aspects of the disclosure process under the Scheme have remained similar to the previous rules under Civil Procedure Rule (CPR) 31. Many of the principles in the Scheme will be familiar – reasonableness and proportionality – but they are now at the forefront[2]. Parties are still expected to detail where data that is potentially relevant to the dispute can be found, and how it can (or cannot) be accessed; previously this was in the Electronic Documents Questionnaire and is now in the Disclosure Review Document. Forensic technology experts continue to be engaged in disclosure (as they were prior to CPR 31).
However, the Scheme has made significant changes to the disclosure process in cases where it applies. This has also affected how and when forensic technology experts are engaged for disclosure. To take a few examples:
Emphasis on early engagement
- Whilst parties have always been obliged to preserve documents, these obligations are now codified in the Scheme. Particular actions need to be taken at particular times, such as contacting third parties who may hold relevant data.
- This has emphasised the importance of identifying data sources of potentially relevant documents with precision and ensuring the right technical steps are taken to preserve those documents.
- This is often a fact-specific exercise but also raises technical issues requiring close work between the lawyers and experts.
- In FRP Advisory’s experience, their forensic technology experts are now more frequently engaged at the earliest stages of litigation to work with lawyers and a client (and their IT team) to ensure data identification and preservation is performed correctly
No default disclosure option
- Previously, parties had a choice from a ‘menu’ of disclosure options and the court retained great flexibility in being able to order any form of disclosure 'that the court considers appropriate'.[3]
- However, parties often defaulted to what was known as standard disclosure, a broad, search-based approach that was considered to be a reason that disclosure could often involve significant numbers of documents and, consequently, costs.
- The Scheme makes clear that there is no default approach to disclosure under the Scheme – but identifying the 'right' approach requires careful thought.
- The parties have the choice of five approaches– Extended Disclosure Models – to take in respect of each issue or category of document, and will need to agree, if possible, which Model should be used in each case.
- Which one is most suitable will depend on the facts but will also depend on certain factors that must be considered under the Scheme. These include the number of documents, the ease and expense of retrieval, and the need to ensure that the case is dealt with expeditiously, fairly and at reasonable and proportionate cost.
- In order to answer those questions, and for a party to provide statistical-driven justifications for (or against) a particular Model, forensic technology experts can find themselves consulting during earlier stages of a case ensuring the necessary data is available and viable.
Co-operation is crucial
- There has been repeated emphasis in case law regarding the Scheme of the need for parties to co-operate in order to agree, where possible, each party’s approach to disclosure.[4] The result is that forensic technology experts may find themselves taking part in calls with lawyers and other experts representing each party, or reviewing related correspondence, to discuss each party’s disclosure proposals.
Data, data, everywhere
There has been an increase in the amount of data potentially subject to disclosure exercises, driven in part by the growth in the number of devices and technologies used to send and receive information. We have probably experienced this personally. We, and a party’s employees or agents, may now:
- use multiple devices for communicating: laptops; tablets; phones and more, with the potential for duplication between work and personal devices. The result is that relevant data may be stored, and need to be collected from, multiple devices.
- send data through various mediums: email; Slack; WhatsApp; LinkedIn; Microsoft Teams; Zoom; and so on. Different technical approaches will be required to identify, preserve and collect that data.
- have continued communications through multiple devices/mediums; a conversation could start as an email chain, move to What’s App or Zoom and then end with a telephone call. Being able to identify gaps in communications and complete them with different sources may be required to fully respond to various parts of the Scheme
This is also likely to have been compounded by the changing working patterns accelerated by Covid-19. Businesses were quick to adopt new technologies and devices to maintain business as (close as possible to) normal. How many video conferencing or internal messaging systems have we tried but no longer use which may contain text conversations that could be relevant to a business decision that is later challenged?
The proliferation of data has been a trend for a while. The Scheme was introduced, in part, because the amount of data that parties were collecting, reviewing, and in some instances disclosing, as part of litigation was increasing. The disclosure process needed to be updated to better respond to the increasing amounts of potentially relevant data.
But the amount of data has been increasing.[5] The impact of this on disclosure is that what once may have already seemed like finding a needle in a haystack may have been exacerbated further. More documents may be potentially relevant to a dispute (more needles) and a client’s data sources may be handling more data from which those documents need to be extracted (more hay).
The proliferation of data is not an issue solely for disclosure under the Scheme. The Scheme does not apply to all types of disputes; for example certain types of litigation (e.g. procurement), arbitration, and regulatory investigations. Forensic technology experts are likely to have found that issues around data proliferation affect those types of cases, too.
Technology is changing
The role of technology in the disclosure process has also been changing.
In terms of collecting data, not all communication channels are the same from a technical perspective. Collecting emails from Outlook on Office 365 is not the same as collecting from, say, teamwork communication platform Slack. The types of data they produce, and how they organise that data, will differ. That affects how the data is collected and how it can be viewed when reviewed: for example; are all communications seen as part of the same document or separate documents, allowing documents from other sources (e.g. emails) to be seen in the right timeline? The lawyers and experts identifying these issues in advance means that the data can be processed in a way that meets the disclosure review requirements.
Each technology company will offer a different process for disclosure (if at all); collecting data from Slack, for example, means using Slack’s own discovery application programming interface.[6] Experts are likely to need to take a different approach to each data source.
There has also been increased acceptance of technology to assist with review. The Scheme does have a role in that adoption – it requires parties to discuss how to use technology to assist with conducting a proportionate review. This reflects the growing amount of data and the possibility that it will be part of the disclosure process; if a party has more than 50,000 documents to review and decides not to use technology to assist in that review they have to explain why. But use of technology assisted review started outside of the Scheme[7] and continues to be adopted in disputes to which the Scheme doesn’t apply.
As for reviewing data, the technology available to lawyers, clients and experts has changed, too. The edisclosure/ediscovery industry is growing.[8] There have been new entrants to the market, increased investment in new technology products and services, and increasing price competition. But technology is not a panacea; some tools will be more effective than others (think of the adage there is more than one way to crack a nut). Forensic technology experts will need to work closely with lawyers and clients to identify what they require in order to identify the best technology and methodology for their needs.
Conclusion
Some may say that the Scheme has made the disclosure process more complex in part or whole.[9] Additional stages and documents, some of which are earlier in the process may give that appearance. However, whilst it is acknowledged that the Scheme has undoubtedly ushered in significant changes, it is impossible to determine their impact scientifically; there is no parallel universe in which the Scheme does not apply. Drawing comparisons with cases before the Scheme only goes so far; every case is fact specific and the simple proliferation of data and technological adaptation over time would likely have always led to more complex disclosure exercises.
Disclosure is often a lengthy, complex and iterative task because of the volume of data involved. Forensic technology experts will be familiar with the Electronic Discovery Reference Model (EDRM) – an industry standard approach to understanding the various stages of a disclosure process. Lawyers may be less familiar with it; EDRM is not referred to in case law or the White Book. But the EDRM emphasises how every stage of disclosure is specialist and can affect another: problems with identifying potentially relevant documents and their sources affects the ability to preserve documents appropriately, and increases the overall technical expertise required to ensure the disclosure process is performed correctly. FRP have found that this is particularly true with the first stages of the EDRM and have seen a shift away from consulting on types of data in a case, towards consulting on information governance and identification from the outset.
In this regard, whilst technological tools for disclosure may make some aspects of the task more straightforward, they actually require greater expertise, precision and thought to ensure that they are used effectively.
Whichever of these themes may affect a dispute, it will still be the case that experts, lawyers and clients are now more likely to need to collaborate and take a holistic view on disclosure from an early stage.
This article was written by Tom Whittaker and Suzanne Padmore of Burges Salmon, and Harry Trick of FRP Advisory. The article first appeared in the August 2021 edition of the Expert Witness journal and has been updated to reflect that the Disclosure Pilot Scheme will be extended again.
[1] https://www.judiciary.uk/wp-content/uploads/2018/07/press-annoucement-disclosure-pilot-approved-by-cprc-1.pdf
[2] For example paragraph 2.4
[3] CPR 31.5(7)(f)
[4] Ventra Investments Ltd v Bank of Scotland [2019] EWHC 2058 (Comm); McParland & Partners Ltd and another v Whitehead [2020] EWHC 298 (Ch)
[5] https://www.weforum.org/agenda/2019/04/how-much-data-is-generated-each-day-cf4bddf29f/
[6] https://slack.com/intl/en-gb/help/articles/360002079527-A-guide-to-Slack%E2%80%99s-Discovery-APIs
[7] For example the court approved the use of predictive coding in 2016 in Pyrrho Investments Limited and another v MWB Property Limited and others [2016] EWHC 256 (Ch)
[8] For example, expansion by one of the leading review platforms, Relativity: https://www.artificiallawyer.com/2020/05/12/relativity-expands-in-europe-despite-ediscovery-downturn/
[9] https://www.lawgazette.co.uk/news/litigators-frustrated-by-hopelessly-laborious-disclosure-pilot/5105736.article