Disclosure: “reasonable and proportionate” VS “leave no stone unturned”.

When it comes to disclosure, litigators can find themselves in a bind. “Reasonable and proportionate” searches are the order of the day, yet lawyers are acutely aware that without thorough interrogation of data they risk missing a crucial detail. Many times the Courts have criticised the “leaving no stone unturned approach,” urging lawyers to do what’s “reasonable and proportionate.” 

What if they could do both?

The Disclosure Pilot Scheme, currently effective in the Business & Property Courts, aims to make disclosure more proportionate and attuned to the circumstances of each case. Crucially, it obliges parties to agree issues for disclosure, and to disclose documents in two stages: “Initial” (usually when serving statements of case) and “Extended,” with the latter including a menu of disclosure “Models” to choose from. 

The overriding goal of streamlining disclosure has fed into the requirements around Initial Disclosure, considered in the case of Qatar. The Court directed that the scope of Initial Disclosure should be “very tightly focused”, covering, for instance, a contract or key meeting note. Initial Disclosure is unlikely to be intended to cover more than “really very necessary documents.”

The scope of Issues for Disclosure was considered in McParland. Different from the issues for determination at trial, Issues for Disclosure are “issues to which undisclosed documentation in the hands of one or more of the parties is likely to be relevant and important for the fair resolution of the claim”.  Often the issues will not be numerous, need not be detailed, and they will almost never be legal issues. Factual issues resolved through Initial Disclosure need not be included.

Peter Eggers QC commented on the need to limit Issues for Disclosure in Lonestar, stating that they must not become “tangled in a complex distillation of issues thrown up by the statements of case”. Careful drafting of the Issues for Disclosure will be needed, to ensure that the distinction between factual issues and legal issues remains intact.

The Courts have emphasised the need for parties to agree disclosure search methodology and terms in advance and have on numerous occasions reiterated the paramount importance of reasonable and proportionate searches.  There is no requirement to pursue all avenues. In Agents’ Mutual Ltd the Court was clear that the question was whether a reasonable and proportionate search had been undertaken, not whether no stone had been left unturned. But the two are not necessarily mutually exclusive. As the judge In Agents noted, “it is the manual review that costs time and money, not the multiple re-runs of electronic searches”.

The shift towards increased use of technology around disclosure is encouraging. Tools that automate manual tasks and allow lawyers to move closer to “leaving no stone unturned”, without straying outside the “reasonable and proportionate” parameters, in terms of their methodology. Whether lawyers require tech for simple document organisation (along the lines of Models A and B) or more sophisticated tools for smart searching and document review (in cases of Models C and D) there are a number of solutions to aid and enhance data exploration. LitiGate offers tools to help lawyers to find and organise their data quickly; automatic de-duplication, classification, dating and ordering of documents circumvents manual trawling, saving time and costs. Our AI-powered search functionality helps lawyers cut through the noise and find exactly what they need, faster, again saving time and costs.

Learn more about LitiGate’s AI-powered Litigation platform by booking a demo or drop us a message at hello@litigate.ai.