Over the coming months all eyes will be on the development of the area of ‘disclosure’ and the way in which that task is undertaken if the Disclosure Working Committee’s proposal for a mandatory disclosure pilot scheme goes ahead.
The rationale behind the proposal is understandable. For anyone involved in commercial proceedings, disclosure is arguably one of the key phases of litigation, but it is also one of the most expensive. The proposal, released in November 2017 by the Committee, set up to look at ways of creating a more streamlined and cost-effective approach to the disclosure process, will be piloted in the Business and Property Courts. The intention behind the pilot will be to see whether the proposals are workable in practice, with the end goal of bringing about a cultural change to the whole process.
The principle of disclosure is for the parties to make available all documents which support or undermine the respective parties’ case. A ‘trusted’ and well used method of undertaking the exercise is to carry out keyword searches for disclosable documents. However, this can be both labour intensive and expensive.
For this reason, litigators are looking at ways of managing the task, in terms of the volume of the documents and the consequential costs. One way is the use of predictive coding software. The starting point is to review a ‘seed set’ of documents and for coding/labelling to be applied to that set. The software is then programmed to review the entirety of the documents, using algorithms to generate results that can identify and discard irrelevant documents.
There are certainly benefits to using this type of technology. However, it is not without its sceptics. Some are concerned that the use of predictive coding might cause privilege to be waived inadvertently, because reliance is being placed on technology as opposed to a human pair of eyes to analyse each document.
The concept of privilege has been enshrined in law to enable a person to be able to obtain legal advice, in the comfort of knowing that such is to remain confidential. Legal professional privilege steps in to place a cloak around the documents, that would otherwise be disclosable, and entitles them to be withheld from disclosure.
The concerns about privilege and the use of technology in disclosure will, no doubt, be tested if the recommended pilot gets underway. For now, the subject of disclosure and privilege remains at the forefront of all those involved in commercial proceedings.
Littleton Chambers, a leading commercial and employment set of barristers, recently hosted a seminar on the topics, and invited Gemma Newing to speak about the potential issues. Please click here for a short video produced by Littleton Chambers on topics surrounding disclosure and privilege.
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