The disclosure pilot in the Business and Property Courts is likely to be extended until the end of 2021, it has emerged.
Ed Crosse, former president of the London Solicitors Litigation Association and a prime mover behind the pilot, said it would be “premature” to end the pilot as planned at the end of this year.
Mr Crosse said final research was awaited from Professor Rachel Mulheron, after her initial report showed that parties were not defaulting to standard disclosure.
He said that, in the meantime, the disclosure working group would produce guidance suggesting “fixes to problems” and a FAQ document.
Speaking at a session on e-discovery at last week’s Relativity Fest event – organised by e-discovery company Relativity – Mr Crosse, a partner at Simmons & Simmons, also accused litigators of using the disclosure pilot as a “stick” to beat their opponents.
Mr Crosse said he agreed with Sir Geoffrey Vos, Chancellor of the High Court, who coined the phrase in his judgment in McParland in February this year.
“People were using it as a stick and it’s good that we’re getting a message like that from the judiciary that people must stop.
“The success of the pilot depends on whether the tools are being used in a constructive way or to cause difficulties.”
Mr Crosse said the disclosure working group considered whether there should be sanctions for non-compliance, but the pilot was intended to encourage a culture of co-operation.
He said that, looking back, “perhaps that was naïve”, but it was a good aspiration to have.
Mr Crosse said there was “some genuine uncertainty” over the framing of issues for disclosure, which was causing difficulties, as was matching the pilot’s five disclosure models to the issues.
He said parties were “overcomplicating the process”, identifying 10, 20 or 30 issues for disclosure, which was “way too many”, or sending the other side 100 disclosure requests.
Mr Crosse added that the duty to preserve documents, which had always existed but was made express by the pilot, had “caused a lot of angst”, particularly the duty to serve preservation notices on former employees.
He said he hoped a practice direction would be issued shortly to tackle the problem.
Kushal Gandhi, a partner at CMS, said an “attitude shift” needed to take place to enable the pilot to work properly, but he was “not very hopeful in the short-term” that this would happen.
Erica Albertson, head of e-discovery at Simmons & Simmons, said one of the biggest challenges was the “education gap” between larger and smaller law firms, “some of whom have never done e-discovery”.
Ms Albertson pointed out that some jurisdictions had also “never done e-discovery”.
Compared to that, she said the large international law firms knew each other and were “pretty co-operative”.
Master Victoria McCloud highlighted the Supreme Court ruling in Cape v Dring last summer, which she said “may alter the way parties think about trial bundles”.
She said there would in future be a greater risk of commercially sensitive documents being disclosed to the public unless the parties made applications to prevent that.
“Just because the parties agree that a document should be confidential does not mean it will not be seen by the public.”