It is not enough that we do our best; Sometimes we have to do what is necessary. This famous line attributed to the leader of the War of Great Britain, Sir Winston Churchill, recalls the parties by pleading by the English and Welsh courts that the use of technology is at the heart of the discovery process – it is no longer optional.
That the parties operate in one or the other of the two regimes which govern disclosure in England and in the land of Wales (part 31 and orientation of practice (PD) 57AD of the rules of civil procedure (RCR)), the disclosure process is a central component which seeks to ensure transparency and fairness. However, emerging data volumes have increasingly required the use of technology. This is why PD 57AD, which is the most recent of the two regimes and in operation of the commercial and real estate courts, places technology on the front line by obliging the legal representatives of the parties to use it.
The duty
More specifically, under the PD 57AD, the legal representative of a part is the obligation to promote the reliable, effective and profitable driving of disclosure using the technology (paragraph 3.2 (3) of PD 57AD). This obligation persists until the conclusion of any procedure and the non-compliance with this obligation may lead to sanctions from the court. These sanctions may include unfavorable cost orders, or failure may be processed as an outrage in the appropriate affairs.
To facilitate this obligation, PD 57AD goes further to encourage and support the use of technology throughout the disclosure process. For example, when it comes to the exclusion of narrative documents (these are documents that are only relevant for the background of a dispute and which are not easily disclosed) the parties must consider using:
- software or analytical tools, including technology assured exam (TAR);
- Coding strategies, especially to reduce duplication; And
- prioritization and workflow.
In addition, when the orders of the court extended the disclosure, obliging the parties to search for documents, the court may take specific arrangements related to the use of technology. For example, the court may require that the parties use certain software or analytical tools or provide for the use of data sampling.
Why not?
However, the blind application of technology is not sufficient. In order to ensure that technology is used effectively and effectively when the prolonged disclosure is ordered, the parties must provide the court and other parties on data on their control. This understands where and how the data is kept and how they offer to process and search for this data.
This information is defined in the Disclosure Review document (DRD). The DRD is a complete document on which the parties must finish, seek to agree and stay up to date. To do this, and despite any trench war which can be adopted elsewhere in the dispute, the parties must cooperate and engage in constructively with each other when it comes to finishing the DRD and accepting the scope of the disclosure exercise.
When the parties consider the use of technology to facilitate the collection and examination of data beyond being reasonable, proportionate and reliable, they are not obliged to justify its use. Instead, it’s the opposite. If they decide not to use the technology to help one or the other process, they should explain why these tools would not be used. The requirement to justify why technology is not used applies, especially if the number of documents that require revision is greater than 50,000 and what is proposed is simply a manual examination exercise.
PD 57AD: Before the curve
PD 57AD entered into force in October 2022, but it was written about five years before its implementation, which means that it came long before the technological jump in terms of generative AI. However, PD 57AD was written to be turned forward and flexible enough to adapt to technological advances.
Consequently, while generative AI is not specifically mentioned in the rules or the DRD, references to technology everywhere are deliberately non -exhaustive. Indeed, although the AI is considered as an umbrella term, many tools mentioned and which are already systematically used within the framework of the disclosure process use the automatic learning element of the AI. Tools, such as continuous active learning models used to assess documents, compared to others, are more likely to be relevant to the underlying dispute, should be examined first.
The parties pleading before the English and Welsh courts should seek to take advantage of new technologies, tools and workflows within the framework of the disclosure process. In doing so, they don’t do their best – they do what is necessary.