It is not enough that we do our best; sometimes we must do what is required. This famous line attributed to Britain’s defining war time leader, Sir Winston Churchill, serves as a reminder to parties litigating through the English and Welsh courts that the use of technology is central to the discovery process – it is no longer optional.
Whether parties are operating under either of the two regimes that govern disclosure in England and Wales (Part 31 and Practice Direction (PD) 57AD of the Civil Procedure Rules (CPR)), the disclosure process is a central component that seeks to ensure transparency and fairness. However, burgeoning data volumes have increasingly necessitated the use of technology. This is why PD 57AD, which is the newer of the two regimes and in operation in the Business and Property Courts, places technology on the front line by obligating the parties’ legal representatives to use it.
The Duty
Specifically, under PD 57AD, a party’s legal representative is under a duty to promote the reliable, efficient, and cost-effective conduct of disclosure by using technology (paragraph 3.2(3) of PD 57AD). This duty persists until the conclusion of any proceedings and a failure to discharge this duty may result in sanctions from the court. Those sanctions may include adverse cost orders, or a failure may be dealt with as a contempt of court in appropriate cases.
To facilitate this duty, PD 57AD goes further to encourage and support the use of technology throughout the disclosure process. For example, when dealing with the exclusion of narrative documents (these are documents that are relevant only to the background of a dispute and are not readily disclosable) parties must consider using:
- software or analytical tools, including technology-assisted review (TAR);
- coding strategies, including to reduce duplication; and
- prioritisation and workflows.
In addition, where the court orders Extended Disclosure, requiring parties to search for documents, the court may make specific provisions related to technology use. For example, the court might require parties to use certain software or analytical tools or provide for the use of data sampling.
Why Not?
Blindly applying technology, however, is not sufficient. In order to ensure that technology is used efficiently and effectively when Extended Disclosure is ordered, parties must provide the court and the other parties with information about the data in their control. This includes where and how the data is held and how they propose to process and search that data.
This information is set out in the Disclosure Review Document (DRD). The DRD is a comprehensive document that the parties must complete, seek to agree on, and keep updated. To do this, and despite any trench warfare that may be adopted elsewhere in the litigation, parties must cooperate and constructively engage with each other when it comes to completing the DRD and agreeing to the scope of the disclosure exercise.
Where parties consider the use of technology to facilitate collecting and reviewing any data beyond being reasonable, proportionate, and reliable, they are not obliged to justify its use. Instead, it is the opposite. If they decide not to use technology to aid either process, they should explain why such tools would not be used. The requirement to justify why technology is not being used applies especially if the number of documents that need reviewing is more than 50,000 and what is proposed is simply a manual review exercise.
PD 57AD: Ahead of the Curve
PD 57AD came into effect in October 2022, but it was drafted approximately five years prior to its implementation, meaning it came along well before the technological leap forward in terms of generative AI. However, PD 57AD was drafted to be forward-looking and flexible enough to accommodate technological advances.
Therefore, whilst generative AI is not specifically mentioned in the rules or the DRD, the references to technology throughout are purposefully non-exhaustive. Indeed, while AI is considered an umbrella term, many of the tools that are mentioned and that are already routinely used as part of the disclosure process utilise the machine learning element of AI. Tools, such as continuous active learning models that are used to assess which documents, compared to others, are more likely to be relevant to the underlying dispute, should be reviewed first.
Parties litigating before the English and Welsh courts should look to leverage new technologies, tools, and workflows as part of the disclosure process. In doing so, they are not doing their best – they are doing what is required.