Disclosure June 26, 2009
Posted by Richard Moorhead in : Uncategorized , trackbackDisclosure
There is an interesting debate shaping up about disclosure. One of the key points is that if you want to reduce legal costs you have to reduce what lawyers actually do on cases. You can do this by attacking the total costs charged (e.g. by having fixed costs and leaving it to the lawyers to work out how to spend their time) or by limiting the work that can be done. Limiting disclosure would be an example of the latter approach.
The disclosure of documentation is reportedly a key driver behind the increasing cost of litigation, particularly now that e-disclosure (disclosure of vast archives of electronic data) is more common. Before embarking on a discussion, it is worth noting that concerns with disclosure are based on an assumption. There is no research demonstrating the effect that disclosure has had on costs. In particular, it may be the case that the impact of disclosure is variable (more important in driving up the costs on big cases) or it may be that changes in disclosure practices have impacted significantly even on smaller cases. We do not know. Jackson is alive to intra-jurisdictional issues suggesting disclosure works well in small claims (where standard disclosure requirements are disapplied); fast track; personal injury and judicial review proceedings (again, in judicial review cases the parties do not have the standard disclosure obligations).
There are a number of statements in the Jackson report where Sir Rupert appears to be open to arguments that disclosure might be reduced. He points to the absence of disclosure in judicial review proceedings and the apparent absence of problems in that jurisdiction (para. 2.4, page 326) and the fact that several jurisidictions have no doscolusre requirements without apparent ill-effects (para. 5.6, page 397). Australia’s limitations of discovery are described as a “signal success” (para. 5.7) and the US is indicated as a warning of what will happen if we do not get matters under control (para. 5.8). IBA rules are discussed (para. 5.1, page 396). These require parties to submit the documents on which they rely, permit ‘requests to produce’ documents which can be contested by those who do not want to produce them. Various other options for change are canvassed including issue based disclosure; the ‘old’ discovery test; more case-managed disclosure; the use of disclosure assessors (likely to be controversial given the risk of increasing costs to little benefit); and adopt stricter tests of materiality/necessity for disclosure (para 6.2 onwards).
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