London Branch Seminar: New Approaches to Disclosure – Saving Costs vs. Reducing Transparency

The event was hosted by White & Case LLP.   The distinguished panel comprised White & Case LLP litigation partner Rebecca Shorter, the Hon. Mrs Justice Finola O’Farrell DBE, a high court judge who sits in the Technology and Construction Court, and Rachel Ansell QC of 4 Pump Court, a construction and international arbitration specialist.   The panel was convened by Andrew Kasriel, Hon. Treasurer of the London Branch and barrister at 5 Pump Court.

Paul Rose welcomed attendees and Andrew Kasriel introduced the distinguished panel of speakers.

Mrs Justice O’Farrell explained the background to and key elements of the discovery pilot scheme launched in the High Court in January 2019.  The scheme seeks to reduce the cost of discovery by requiring the parties to identify with the statement of case key documents to be relied upon and necessary to understand the case, and to justify any further discovery. The parties can request one of five disclosure models, A-E, in ascending order of complexity. She explained that the scheme was a response to demand by users for cheaper, simpler processes and there is now a greater requirement on the parties to focus on what is really needed for a particular case. It is a significant cultural change.

Rachel Ansell QC considered disclosure in the arbitration context, explaining that the various procedural rules commonly in use e.g. LCIA, ICC, UNCITRAL (on which the CIArb Rules are based) are not very prescriptive, to allow parties from different legal traditions to agree on an approach they can both be comfortable with. The civil law (inquisitorial) tradition is for disclosure to be less onerous than the common law (adversarial) tradition. The IBA rules impose a duty of good faith, but it is not a one-size-fits-all concept. Model C of the pilot scheme is closest to what is commonly used in arbitrations, which is to use a “Redfern schedule” (a collaborative record of disclosure requests) plus disclosure of adverse documents.

Rebecca Shorter considered the evolving landscape of documentation, particularly that technology has changed the way we work to such an extent that manual review is no longer an effective option for discovery. In litigation, the average construction dispute produces 1 TB (1000 GB) of documents which she considers equivalent to 4 ½ million documents. The solution is to use a disclosure software. Predictive coding has received judicial approval. Data sampling is another technique which may be useful. The use of e-disclosure is less common in arbitrations, and should be used more. The parties can agree the methodology, perhaps including search terms. In her experience, there is very rarely a documentary “smoking gun”, and so she doubts whether the costs of standard discovery are justifiable, although it may be necessary where there is a significant imbalance of power in which party holds the records.

There followed a thought-provoking Q&A session, including consideration of discovery in futuristic scenarios where black boxes contain all the evidence, and that ultimately in arbitration, the approach to discovery is for the parties to agree.  A drinks reception was generously hosted by White & Case LLP.