Open Door Disclosure in Civil Litigation
| Author | Andrew Higgins |
| DOI | 10.1350/ijep.2012.16.3.406 |
| Published date | 01 July 2012 |
| Date | 01 July 2012 |
| Subject Matter | Article |
OPEN DOOR DISCLOSURE IN CIVIL LITIGATION
Open door disclosure in
civil litigation
By Andrew Higgins*
Lecturer in Civil Procedure, Faculty of Law, University of Oxford
Abstract This article offers a defence of broad disclosure in civil litigation given
its value in helping parties enforce their legal rights or uphold the law.
Nonetheless there is an inherent tension between accuracy, cost and time in
determining disputes, and there are legitimate concerns that disclosure has
become too costly. The article argues that the primary disclosure obligation in
large cases should be to open one’s door to the other party. It would then be
incumbent on the party seeking disclosure to review an opponent’s files for
relevant documents. The party giving disclosure would have additional rights to
protect privileged and private information, including guarantees against the
use and further disclosure of such information. This model will promote
efficiency because it puts the decision as to how much to invest in disclosure
directly in the hands of the party seeking it.
Keywords Civil litigation; England; Disclosure; Costs; Legal professional
privilege; Right to privacy
he problem with disclosure is that it is important, sometimes decisive, in
achieving the right outcome in civil litigation, yet it is also expensive,
often very expensive. Thus while disclosure contributes greatly to
accurate adjudication and fairer settlements, its high cost undermines the value
of the very rights it is designed to protect.
There is an inherent tension between the competing requirements of accuracy,
cost and time in determining disputes. A balance must be struck that allows a
court to give judgment with reasonable accuracy within a reasonable time and at
doi:10.1350/ijep.2012.16.3.406
298 (2012) 16 E&P 298–322 THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF
T
* Email: andrew.higgins@law.ox.ac.uk.
proportionate cost.1If any one of these factors is given disproportionate weight, it
would jeopardise the courts’ ability to deal with cases justly.
While opinion is divided on whether the English disclosure rules strike the right
balance, there is general concern that disclosure is simply too burdensome in
large cases and has the effect of reducing access to justice for some litigants.2
However, finding the right means of reducing the costs of disclosure without also
eroding its forensic value to the litigation process has proved elusive. To date,
reform efforts have focused on trying to limit disclosure to documents that are,
rather than might be, important. This article advocates a proposal for reforming
disclosure that focuses not on what documents must be disclosed, but rather how
disclosure should be conducted and who should be responsible for conducting it.
The aim of the proposed reforms would be to maintain the substantial benefits of
disclosure in large cases, whilst better tailoring the disclosure process to the needs
of the parties to the instant dispute.
The proposal is that the obligation to disclose relevant documents should be
converted to a basic obligation to open the door to one’s opponent. To protect a
person’s right to privacy and legal professional privilege, this duty would be
supplemented by optional rights to quarantine irrelevant and privileged material.
In addition, the disclosing party would enjoy the existing guarantees against the
further disclosure or collateral use of any documents obtained during disclosure,
and a new guarantee against the use of privileged information. In this respect, the
model would provide arguably even greater protection to privileged information
than current law.
This model can make disclosure more efficient because the decisions about what
resources to invest in the disclosure process will be made by the parties based on
their own assessments of its costs and potential benefits.
Where open door disclosure would not create greater efficiencies, the court
should have the discretion to order disclosure by a different method. The article
sets out some of the situations where that may be the case.
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1 As required by the right to fair trial and the overriding objective of the Civil Procedure Rules 1998
(CPR) r. 1.1.
2 R. Jackson, Review of Civil Litigation Costs: Final Report (TSO: London, 2010) ch. 37, para. 3.5, available at
alreport140110.pdf>, accessed 22 April 2012.
The first part of this article outlines litigants and prospective litigants’ ability to
access evidence held by others, and the courts’ powers to order disclosure, in civil
proceedings in England. It then discusses the benefits of disclosure, its costs and
limitations, and offers a defence of the broad disclosure rule in England and other
common law legal systems against those who think the more limited disclosure
requirements in civil systems are superior.
The second part of this article discusses reform efforts to make disclosure cheaper
and more proportionate to the litigation in which it is given. It focuses on the
main changes introduced with the Civil Procedure Rules in 1999 which have
sought to reduce the volume of discovery by narrowing the definition of ‘relevant’
documents. In the following part, the article sketches how an open door disclosure
model for large cases might work in practice, and discusses the new ‘menu option’
for giving disclosure recommended by Jackson LJ in his review on costs.
1. The benefits and costs of disclosure
Outline of the current disclosure rules
The disclosure process is an integral feature of the civil justice system in England.
Having access to documents and information is crucial if law enforcement
agencies are to detect and prove breaches of the law and private litigants are able
to enforce or defend their legal rights. For these reasons all modern legal systems
provide some compulsory measures to help parties to legal proceedings obtain
relevant evidence. In English law, the court has the power to order the parties to
give disclosure in both fast and multi-track cases under CPR Part 31.3Where a
court orders a party to give standard disclosure, that party must disclose
documents on which he intends to rely, documents which adversely affect his own
case, or which adversely affect another party’s case, or which support another
party’s case. In addition, a party must disclose any documents which he is required
to disclose by a relevant Practice Direction. The Practice Directions refer to the
specific and general obligations to disclose information under pre-action
protocols. These protocols set out the information that putative parties should
exchange with each other prior to the commencement of proceedings. Although
these protocols are not enforceable, failure to comply with them can have adverse
cost consequences if, in the opinion of the court, it has led to the commencement
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3 CPR Part 31 does not apply to cases on the small claims track which, subject to certain exceptions,
deals with claims worth £5,000 or less: CPR rr 26.6(1) and 31.5(3). Each party will normally be
ordered to serve on the other all documents on which he intends to rely: CPR Practice Direction
27—Small Claims Track, para. 2.2 and Appendix B thereto.
of proceedings which need not otherwise have been commenced or led to costs
being incurred unnecessarily.4
A party giving disclosure must conduct ‘reasonable searches’ for documents
which are covered by an order for standard disclosure.5The duty to disclose
documents extends to all documents which are or have been in the party’s
possession or control.6The duty continues until the proceedings are concluded,
and if a party becomes aware of documents which are covered by an order for
disclosure at any time during the proceedings, he must immediately notify every
other party.7
The court also has the power to order specific disclosure of a document or classes
of documents. This includes the power to order specific searches to be carried out
and disclose any documents located as a result of that search.8
The court also has the power to order disclosure before proceedings commence
where both the applicant and the respondent are likely to be party to subsequent
proceedings and it is desirable that disclosure be ordered to dispose of the case
fairly or efficiently.9Finally, it is worth noting that CPR r. 31.17 and CPR Part 34
provide facilities for litigants to obtain documents from third parties.
The benefits of disclosure
The advantages of disclosure are well understood by the common law lawyer.
While there is no need to discuss them in depth, it is useful to set them out in
order to give some context to the discussion about the problems with disclosure
and past and possible reforms. The advantages of the disclosure process fall into
two overlapping categories. The first relates to the integrity of the trial process.
Disclosure promotes accuracy in adjudication and thus fairness to both sides and
public confidence in the correctness of judicial outcomes. Disclosure reduces
information asymmetry between the parties so that neither is denied a successful
claim (or defence) because the information necessary to prove it is held exclusively
by his opponent. Disclosure also covers material which a party wishes to rely on. By
requiring parties to disclose this information at an early stage of proceedings, it
avoids the parties being taken by surprise at trial. Thus disclosure helps put the
parties on an equal footing or in the terminology of the European Court of Human
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4 CPR Practice Direction—Pre-Action Conduct, para. 4.6.
5 CPR r. 31.7.
6 CPR r. 31.8.
7 CPR r. 31.11.
8 CPR r. 31.12.
9 CPR r. 31.16.
Rights, it helps ensure equality of arms. In Dombo Beheer BV vNetherlands,10 the
European Court of Human Rights said that a requirement of the right to a fair trial
was that each party must be afforded a reasonable opportunity to present his case
and evidence under conditions that do not place him at a substantial disadvantage
against his opponent. That implies equality of access to evidence. Disclosure also
promotes equality of arms by reducing resource inequality. Many individual
litigants suing large enterprises will lack the resources to obtain all relevant infor-
mation to a dispute independently, when much of the information will already be
in the possession of the litigant’s opponent.
Secondly, disclosure contributes to the efficient conduct and disposal of litigation.
Conducting litigation ‘with all the cards face up on the table’11 helps clarify the
issues between the parties, the strengths and weaknesses of their cases and thus
encourages fair settlement. As Posner points out, a disclosure process that enables
both parties to improve their estimates of the outcome of the case is likely to facil-
itate settlement.12 Therefore, while the disclosure process itself can be costly and
time-consuming, it can actually help reduce the overall costs of litigation and the
time taken to resolve it. The value of early disclosure in promoting more efficient
litigation, and sometimes the opportunity to avoid litigation altogether, was
recognised by Lord Woolf in his report on access to justice, and lay behind his call
for an extension of the power to order pre-action disclosure, and the introduction
of pre-action protocols.13
For all these reasons, the starting point of the common law is that any evidence
that is relevant to a dispute is compellable and admissible in a proceeding. It is in
the public interest, Lord Lloyd said, ‘that all relevant material should be available
to courts when deciding cases. Courts should not have to reach decisions in
ignorance of documents or other material which, if disclosed, might well affect
the outcome’.14
The limits of disclosure
There are a number of important limits on the right to obtain evidence. The most
important for present purposes is the requirement on the courts to determine
rights in a manner that is compatible with the enjoyment of the rights at stake.
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10 (1993) 18 EHRR 213.
11 Naylor vPreston Area Health Authority [1987] 1 WLR 858 at 967.
12 R. Posner, ‘An Economic Approach to Legal Procedure and Judicial Administration’ (1973) Journal of
Legal Studies 399 at 426.
13 Lord Woolf, Access to Justice: Final Report (1996), available at
gov.uk/+/http://www.dca.gov.uk/civil/final/index.htm>, accessed 22 April 2012.
14 RvDerby Magistrates’ Court, ex p. B [1996] AC 487 at 510, HL.
Amongst other things, this requires the courts to resolve cases within a reasonable
time and at proportionate cost to the value, complexity and importance of the
dispute. As a consequence, the disclosure process cannot be exhaustive. In any
event it is not possible to guarantee that the court has access to all relevant evidence
when determining a dispute—no system of procedure can do that. Memories fade,
witnesses move away or die, documents get lost or destroyed. Sometimes relevant
evidence is not known nor ever discovered by the parties to litigation. Complete
accuracy can never be guaranteed. This trite observation merely affirms the
importance of keeping the disclosure process within sensible and affordable
limits given its inherent limitations.
The costs of disclosure
Disclosure was identified by Jackson LJ as one of the drivers of costs in larger
actions.15 In smaller actions it is less of a problem,16 and in the smallest of actions
there is no standard disclosure.
On any view, the disclosure obligations in English law are substantial and
extensive. Complying with them can be costly, time-consuming and disruptive to
the disclosing party. Extensive disclosure also undermines the accessibility of the
justice system. Many ordinary people and small businesses cannot afford the high
costs of civil litigation, and are deterred by the possibility of having to pay their
opponent’s costs, including the costs of disclosure, in the event that they lose the
case. Yet ending the recoverability of disclosure costs is likely to create a different
set of problems. Disclosure obligations can place substantially higher burdens on
some parties than others in practice. Companies with thousands or millions of
documents will obviously have a lot more work to do in locating relevant
documents than an individual suing them. This is a particular concern for corpo-
rations in the United States, where each party must bear its own costs, so
defendants cannot recover the millions of dollars it takes to provide discovery
even if they successfully defend the case. This gives David considerable leverage
over Goliath, and can lead to companies choosing to settle even unmeritorious
cases for amounts less than the cost of giving disclosure.
The burden of extensive disclosure falls not only on the party giving it, but also on
an opposing party presented with a mass of documentation of marginal relevance.
It has been said that in such a case disclosure can, far from clarifying the issues,
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15 R. Jackson, Review of Civil Litigation Costs: Preliminary Report (TSO: London, May 2009) ch. 40,para. 1.1.
16 The experience is similar in the US according to an empirical study by W.D. Brazil, ‘Civil Discovery:
Lawyers’ Views of Its Effectiveness, Its Principal Problems and Abuses’ (1980) American Bar
Foundation Research Journal 787 at 870–1.
operate as a cloud.17 However, criticism of disclosure on this ground is often
misplaced. It is fair to criticise parties who try to drown their opponents in a sea of
marginally relevant information in the hope that it will prevent them from
finding damaging documents. Yet where there is a sea of marginally relevant
information, in order for there to be full disclosure someone must review the
material. The key question is whether the person who carries out the review
should be the party who has the documents or the party who wants them. In
deciding that question we need to weigh up various competing considerations:
disclosing parties are more familiar with their own documents, they have a legit-
imate interest in protecting privileged and confidential and irrelevant
information, but they also have a vested interest in conducting the process in a
way that avoids disclosure or discovery of damaging information. On the other
hand, the party seeking disclosure is the person with the greatest interest in
locating relevant information held by his opponent, and might reasonably be
expected to spend the time and money to conduct the review exercise.
Is the approach in civil law systems superior?
One radical method of limiting the review costs associated with disclosure is
simply to abolish the obligation to locate relevant documents and the corre-
sponding right to obtain them. Because of the burdens of the disclosure process,
possibly unfavourable comparisons can be drawn with civil law systems in Europe
where disclosure obligations are much more limited. In its submission to
Jackson’s review of the costs of civil litigation, the Commercial Litigation Associ-
ation argued that:
A comparison with other countries only illuminates the fact that our
system is failing and the suggestion that there should be a reduction
in the amount of disclosure is welcomed. Their systems should be
used as a basis to explore how the reduction can be formulated.18
While there are of course differences between Continental jurisdictions a
common feature of civil law systems based on Roman law is that there is no
general obligation on a party to produce to his opponent documents in his
possession which are adverse to his case or helpful to his opponent.19 However, many
civil law systems have no objection in principle to requiring a party to disclose
damaging material. Civil courts have the power to order a party to produce to his
opponent documents in his possession which are specifically shown to exist in his
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17 P. Matthews and H. Malek (eds), Disclosure, 3rd edn (Sweet & Maxwell: London, 2007) para. 1.03.
18 Jackson, above n. 2 at ch. 37, para. 3.5.
19 Matthews and Malek, above n. 17 at para. 1.24.
possession and whose importance to the opponent’s case can be demonstrated.20
In other words, civil law systems do not require a party to disclose unhelpful
documents of which the other party is unaware.
It is doubtful whether there is a sound theoretical basis for distinguishing
between harmful documents which are known to an opponent, and harmful
documents which an opponent is unaware of. Perhaps it might be argued that a
general obligation to disclose harmful documents, even if the opponent is
unaware of their existence, somehow alters the burden of proof which typically
rests with the claimant in both civil and common law systems. Yet there is no
inherent link between a requirement to prove one’s case and a restriction on the
sources of evidence that can be used to do the proving. In some cases, denying
access to evidence held by an opponent or third parties would mean demanding
the impossible of the claimant in order to assert his legal rights. In quite a few
cases the evidence establishing that the claimant has a valid claim against the
defendant lies exclusively with the defendant.
The key question is what should claimants have to show before they can invoke the
state’s powers to assist them in collecting relevant evidence from persons
unwilling to disclose it? In common law systems this question is usually wrapped
up with the question of whether a claimant’s case will be allowed to proceed to
trial and take advantage of any associated disclosure.21
There is a lively debate in the common law world about the appropriate burden on
claimants in order to proceed to trial and utilise the court’s powers of compulsory
disclosure. In the United States, the Supreme Court has started to shift away from
a basic requirement of notice pleading (i.e. to give notice to the defendant of the
nature of the claimant’s complaint) to a plausibility standard which requires a
claimant to show that there is some substance to his claim.22
In England, a claimant must set out the foundation of the claim in his statement
of case, i.e. the facts that entitle the claimant to the remedy that he seeks from the
defendant.23 The statement of case may also state propositions of law on which the
claim is based. In order to avoid having the case struck out or summary judgment
against him, a claimant’s case must also be cognisable in law (i.e. if all the facts
pleaded are proved, his claim will succeed or is at least arguable) and there must
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20 For example, Nouveau Code de Procédure Civile, art. 11 (France) and the Codice diProcedura Civile,
art. 210 (Italy).
21 The issue will increasingly arise in applications for pre-action disclosure as well: CPR r. 31.16.
22 Bell Atlantic Corp. vTwombly 550 US 544 (2007); Ashcroft vIqbal 129 S Ct 1937 (2009).
23 CPR r. 16.4.
be a reasonable prospect of succeeding on the facts.24 Importantly, however, a
party applying for summary judgment has the burden of proving that the
respondent has no real prospect of succeeding.25 Another important qualification
is that in assessing whether the claimant has reasonable prospects of success,
English law takes account of the possibility that further support for the claimant’s
case may emerge if disclosure were given.26
Apart from these threshold requirements on claimants when invoking the courts’
processes, the burden of proof rarely plays a part in other aspects of the litigation
process. As Lord Thankerton observed in Watt vThomas,27 the burden of proof as a
determining factor at trial does not arise except insofar as the court is unable to
come to a definite conclusion on the evidence, or some part of it, and the question
arises as to which party has to suffer from this. Lord Hope endorsed this analysis in
Pickford vImperial Chemicals Industries plc,28 noting that cases of this kind were excep-
tional. Where the evidence at the conclusion of the trial is uncertain, the burden
of proof will operate as a tie-breaker to defeat the claimant because he has failed to
prove his case on the balance of probabilities.29 But this is its only legitimate
function.30 The burden of proof is not designed to make it difficult for the claimant
to prove his case, and certainly not more difficult than the defendant. Indeed,
there is no reason why the law should provide defendants (or claimants) with any
procedural advantage over the other in any aspect of the litigation process.
A comparison with the criminal process highlights the importance of giving civil
litigants equal procedural rights. Between the two types of error a criminal court
can make—a false acquittal or a false conviction—the latter is the more serious.
Both reflect badly on the system and may reduce the community’s confidence in
it, but convicting an innocent person also involves ‘a monstrous wrong against an
individual’.31 To protect against convicting the innocent, the criminal process
incorporates an ‘error preference’ by placing a heavy burden of proof on the prose-
cution.
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24 CPR rr 3.4(2)(a) and 24.3(1).
25 Green vHancocks [2000] Lloyd’s Rep PN 813.
26 A. Zuckerman, On Civil Procedure , 2nd edn (Sweet & Maxwell: London, 2006) para. 8.50; Sv
Gloucestershire County Council [2001] Fam 313, CA.
27 [1947] AC 484 at 487.
28 [1998] IRLR 435b, HL.
29 Zuckerman, above n. 26 at para. 21.46.
30 On occasions, the burden of proof may also defeat a claimant because his version of events,
although more plausible than the defendant’s version, is still implausible.
31 A. Ashworth and M. Redmayne, The Criminal Process, 4th edn (Oxford University Press: Oxford, 2010)
25.
By contrast, where a court is determining a private legal dispute, where no one’s
liberty nor the odium of a criminal conviction is at stake, there is no reason to
favour one party over the other in allocating the risk of error. The burden of proof
on the claimant is a legitimate tie-breaker where evidence is evenly poised. It is
just that he who comes to court first must prove his case. However, it does not
necessarily follow that a claimant must be left entirely to his own devices to find
all the evidence in support of his case. What the burden of proof requires is that
the claimant does the proving; the principle says nothing about where the
evidence constituting proof should come from. Even in the criminal context, there
is a clear separation between the burden of proof and sources of evidence. As
Redmayne observes: ‘The burden of proof … is a rule about the amount of evidence
the prosecution needs to produce: [it] does not rule out the defendant as a source
of evidence’.32
While disclosure in civil litigation can be crucial to helping a claimant prove his
case against the defendant, it should not be assumed that the disclosure process in
civil litigation provides a forensic advantage to claimants over defendants.
Disclosure can be equally important to all parties to prove their case or defend
one. Disclosure by a claimant of material which is likely to defeat his case is a rare
phenomenon in practice. This is for the simple reason that claimants typically will
not bring hopeless claims if the reason they are hopeless is indicated by damaging
material in their possession which must be disclosed if they bring an action.
Critics of the English system might dismiss broad disclosure as facilitating, even
encouraging, a fishing exercise by claimants. However, that criticism rings hollow
if the defendant then produces a boat load of fish in response to a disclosure order.
The difficulty, of course, is that the claimant and the court often cannot know in
advance whether the defendant has any damaging material, and assurances by
the defendant to the contrary need to be treated with caution for obvious reasons.
The same is also true of disclosure by claimants. While the English system might
facilitate a degree of fishing, the logical corollary of this effect is that it deters both
parties from presenting a misleading picture to the court based on a selection of
relevant evidence.33
Problems of enforcement
A more persuasive critique of the English system of disclosure lies not in a
theoretical objection to compulsory disclosure of harmful material, but in the
practical difficulty of policing the obligation. The English disclosure process relies
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32 M. Redmayne, ‘Disclosure and its Discontents’ [2004] Crim LR 441 at 452.
33 Al Rawi vThe Security Service [2010] EWCA Civ 482, [2010] 3 WLR 1069 at [18].
heavily on the parties’ voluntary compliance. While the obligation to disclose
harmful documents is compulsory, enforcing the obligation in respect of
documents that only the party knows about is extremely difficult. Because of the
difficulties in enforcing compliance, and the negative effects that non-compliance
has on the administration of justice, English law imposes heavy sanctions for
failing to comply with a disclosure order.
The ultimate sanction for non-compliance is that a court can strike out their
statement of case or defence.34 An order for striking out can be made in respect of
the whole of the party’s claim, even if the missing disclosure relates only to one
part of the claim or defence.35 There may also be criminal liability for perverting
the course of justice if the non-compliance involves destruction of documents in a
deliberate attempt to suppress evidence.
In addition, the law places ‘a great responsibility and a heavy burden’ on lawyers
in relation to their client’s disclosure.36 In the recent case of Hedrich vStandard Bank
London Ltd, the Court of Appeal set out the solicitor’s duty on disclosure, endorsing
Mathews and Malek’s description of the duty.37 Lawyers must ensure, so far as
possible, that their client gives full disclosure. This duty extends to explaining the
precise scope of the disclosure obligation and the need to preserve documents.
Solicitors are also encouraged to take possession of all the original documents as
early as possible and review them, because it is for the solicitor, not the client, to
decide which documents are relevant. Where solicitors know that their client has
concealed relevant documents, they must be very careful in how they conduct the
case. They cannot act in a way that suggests that full disclosure has been given,
and if that is not possible they must cease to act.38
The heavy sanctions for non-compliance with a disclosure order, combined with
the obligations on lawyers to ensure that their client gives full discovery, and the
risk that documents which ought to have been disclosed might somehow leak out,
is hopefully sufficient incentive to secure compliance in most cases. However, the
risk of non-compliance cannot be eliminated. A party determined to conceal
relevant evidence may be able to do so, whatever disclosure model is adopted.
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34 CPR r. 3.4(2)(c).
35 Danvillier vMyers [1883] WN 58, CA.
36 Rockwell Machine Tool vEP Barrus (Concessionaires) [1968] 1 WLR 693 at 694; Myers vElman [1940] AC 282.
37 Hedrich vStandard Bank London Ltd [2008] EWCA Civ 905 at [14]; Matthews and Malek, above n. 17 at
paras 14.02–14.10.
38 Myers vElman [1940] AC 282.
2. Reforms
Because disclosure can be costly, Lord Woolf recommended significant reforms as
part of his review of access to justice in the mid-1990s. One of the aims of these
proposed reforms was to cut down the extent of disclosure and for disclosure to be
proportionate to the nature of the case in hand.39 While Lord Woolf’s recommen-
dations were not adopted in full, the thrust of them is reflected in the new
disclosure rules in CPR Part 34.
The most significant change was to amend the definition of what documents are
relevant and thus disclosable. Under the former rules, a document was relevant if
it may contain information that would either directly or indirectly enable the
party seeking discovery to advance his own case or to damage the case of his
adversary. This includes information that may fairly lead to a train of inquiry which
may help a party advance his own case or damage the case of his opponent. This is
known as the Peruvian Guano test, after the case in which it was stated.40 This very
broad definition of relevance (covering every piece in the puzzle) meant that
documents with only a tangential connection to the dispute were subject to
disclosure. Now parties are obliged to disclose only those documents that are
directly harmful to their own case or helpful or harmful to another party’s case
when giving standard disclosure.
However, the shift to standard disclosure under the CPR is unlikely to reduce
costs, or the scope of disclosure, for a number of reasons.
First, moving from quantity to quality (significance) in the disclosure process can
actually increase the burden on the party giving disclosure. The Peruvian Guano test
meant that many marginally relevant documents had to be disclosed. However,
the task of reviewing documents for marginal relevance is relatively straight-
forward and can be done by junior lawyers or paralegals. The task of reviewing
documents for significance (i.e. their capacity to harm a party’s case or help or
harm his opponent’s case) is a more time-consuming and difficult task. It requires
a careful judgement call, often from a trained or senior lawyer. Therefore, while
fewer documents may be disclosed under standard disclosure, the cost of
disclosing those documents will often be the same if not higher than the costs of
disclosure under Peruvian Guano.
Secondly, and related to this point, it may be debatable whether material is
helpful or harmful to a party’s case. Under the new rules there may be more
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39 Lord Woolf, Access to Justice: Interim Report (1995) ch. 21, para. 20.
40 Compagnie Financière et Commerciale du Pacifique vPeruvian Guano Co. (1882) 11 QBD 55 at 63.
grounds in a given case to doubt whether the disclosure was adequate, which can
lead to satellite litigation over disclosure. According to Jackson, there is a
perception that courts are too willing to entertain requests for specific disclosure.
In turn, this informs advice given to clients about what they should disclose; it
being common to advise clients to provide Peruvian Guano disclosure rather than to
face specific disclosure applications.41 Zuckerman observes that in large and
complex cases—where the greater discrimination called for by the new rule is
supposed to bite—the usefulness of certain documents might depend on the state
of the rest of the evidence. Since disclosure has to be given at an early stage of the
proceeding, lawyers might find it difficult to make more than a rough assessment
of usefulness, meaning the disclosure given may conform more closely to the
Peruvian Guano standard.42
Thirdly, while standard disclosure has altered the nature of the documents that
must be disclosed, the searches required to find such documents have not
substantially changed. The consequence is that disclosing parties still have to
locate and review all their documents for potential relevance. CPR r. 31.7 sets out
a duty to make ‘reasonable searches’ for disclosable documents, and lists some
relevant factors in deciding the reasonableness of search. These include: (a) the
number of documents involved; (b) the nature and complexity of the pro-
ceedings; (c) the ease and expense of retrieval of any particular document; and
(d) the significance of any document which is likely to be located during the
search. CPR r. 31.7 is clearly designed to link the obligation to find disclosable
documents to the overriding objective that cases are dealt with proportionately
to the value and importance of the dispute. But applying the new proportionality
test to the searches a disclosing party must make is not always easy. While it
would be unreasonable for a party to search every conceivable location, and all
present and past employees’ files, computers, phones and email accounts, that
does not necessarily entitle a party to refrain, for example, from searching
company archives simply because it would be expensive to do so. In conducting
searches for relevant documents, there will inevitably be a tendency on the part
of lawyers to err on the side of caution—mindful of their client’s and their own
heavy responsibilities to the court, and appreciating, probably subconsciously,
that they benefit financially from extensive disclosure processes. This means
that lawyers are likely to search everywhere potentially disclosable material
might be found.
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41 Jackson, above n. 15 at ch. 41, para. 4.8.
42 Zuckerman, above n. 26 at para. 14.36.
There is some empirical evidence to suggest that disclosure costs have not fallen
appreciably since the CPR reforms. A survey of practitioners by Herbert Smith on
the tenth anniversary of the CPR found that all respondents thought the reforms
to disclosure were unsatisfactory, and many thought disclosure continued to be as
costly as it was under the former rules.43 Another reform designed to reduce cost
that has gained popularity in some common law countries is to order disclosure by
categories. This requires the parties to agree or the court to order the disclosure of
specific categories of documents, rather than general disclosure of all documents
judged relevant by reference to the pleadings. Disclosure in the United States is
usually given in response to discovery requests for particular categories of
documents. In the Federal Court of Australia, the court has the power to order
disclosure to be given by categories.44 This can minimise difficulties for the
disclosing party in identifying which documents are relevant, as well as opportu-
nities for creative or narrow interpretations of pleadings in order to avoid
disclosure of sensitive documents. However, as with the move to standard
disclosure, its principal weakness is that it does not reduce the search and review
costs of the party giving disclosure.
Some in the United States have argued that excessive disclosure can be limited by
shifting the costs to the party requesting it. For example, Rutledge has advocated
making the plaintiff pay a bond which can be accessed by the defendant if the
costs of complying with discovery requests exceed a reasonable amount.45 This
idea is promising, but taken alone it can create perverse incentives. Costly
litigation is always profitable for someone, and the beneficiaries of extensive
disclosure are the lawyers who carry it out. If the costs of disclosure must be borne
by an opponent, win or lose, it gives an incentive to lawyers to conduct discovery
in the way that maximises their own profit and inflicts maximum cost on the
opponent. An opponent has limited capacity to control these costs, and a client
giving disclosure has no interest in doing so if his opponent is footing the bill. The
result is another opportunity for strategic game playing to increase an opponent’s
costs and wear him down.
3. The open door disclosure model
The principal argument of this article is simple: the primary obligation of
disclosure in large cases (which in England are multi-track claims heard by the
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43 T. Parkes, ‘The Civil Procedure Rules Ten Years On: The Practitioners’ Perspective’ in D. Dwyer (ed.),
The Civil Procedure Rules Ten Years On (Oxford University Press: Oxford, 2009) 435, 443.
44 Federal Court Rules 2011, r. 20.15.
45 P. Rutledge, ‘The Proportionality Principle and (the Amount in) Controversy’, UGA Legal Studies
Research Paper No. 11/2003.
High Court46) should be to open the door to one’s opponent. It would then be
incumbent on the party seeking disclosure to physically conduct the process of
reviewing documents for relevance. The disclosing party would still be responsible
for providing details of documents that were, but are no longer, in his possession
or control.
The philosophy behind this model is that in the majority of large cases, the most
efficient and fairest way to conduct disclosure is to shift the costs of disclosure and
the responsibility for reviewing documents for relevance from the party who has
the material to the party seeking it.
Shifting the burden of disclosure will have two principal benefits. First, it will
promote efficiency because the person making the choices about the
thoroughness of disclosure is the person ultimately paying for it (indeed doing it).
Secondly, the model can facilitate more effective disclosure (and thus more
accurate adjudication and fairer settlements) because the party who has an
interest in limiting disclosure is no longer the person making the judgement
about what is relevant.
There are many possible questions as to how such an open door would work in
practice. One might ask whether it would be fair to the disclosing parties to force
them to let an opponent (i.e. a stranger) onto their premises, which may be their
own home, to look for documents for use against them in litigation. In the course
of that inspection the opponent may see things that are private and irrelevant to
the case or, indeed, confidential material which is protected by law. These
concerns and others will be dealt with below in the course of sketching out the
proposed model.
An open door disclosure obligation is only one part of the picture. Disclosing
parties have important rights which require protection. They have the right to
avoid disclosure of confidential and irrelevant information to another party,
including material which may be protected by the right to privacy in Article 8 of
the European Convention on Human Rights. They also have a right to protect
material which is subject to legal professional privilege and assert a claim to
public interest immunity. The model would be compatible with the privilege
against self-incrimination because, following the Court of Appeal’s decision in C
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46 Claims where the amounts in controversy are in excess of £25,000, or are likely to be too complex
or lengthy for the fast track, will be allocated to the multi-track (CPR r. 26.6(6)). In addition, claims
worth less than £50,000 will normally be transferred to the county court (CPR Practice Direction
29—The Multi-Track, para. 2.2).
Plc vP,47 the privilege does not cover pre-existing evidence where the person who
might be incriminated is not forced to physically produce it. The duty to open the
door involves no testimonial obligation. The applicant obtains relevant infor-
mation from the respondent through his own efforts.
A fair system of disclosure must respect the right of disclosing parties to protect
privileged material, and their right to privacy. But an open door model is
compatible with protecting a party’s confidential information, and preventing
the disclosure of information if its disclosure would harm the public interest. To
begin with, a party would still be free to avoid disclosure of confidential infor-
mation to his opponent, or assert a public interest immunity claim. As with the
present system, the disclosing party can separate out any documents subject to a
claim for privilege or public interest immunity, and provide a list giving partic-
ulars of those claims.
Similarly, a disclosing party should be given the right to prevent his opponent
from reviewing irrelevant confidential material. To give effect to this right, a party
should be able to remove or quarantine irrelevant material from the material
which his opponent may review. If the disclosing party exercises this right, he
should have to notify the other party and provide a general description of the
quarantined documents. The list need only describe the documents in such
general terms as are sufficient to satisfy the court that they are irrelevant without
disclosing any confidences, for example ‘personal letters with friends and family’.
These rights of removal should be supplemented by two additional guarantees
against the use or further disclosure of confidential documents obtained during
the disclosure process. The existing law already provides these guarantees or
can be readily adapted to do so. First, documents and information which are
obtained during disclosure cannot be used for any purpose other than the
proceedings in which they are disclosed.48 This rule reflects the need to balance the
interests of ensuring full disclosure—to facilitate the proper administration of
justice—against the rights of privacy of the party giving disclosure. The rule
ensures that the interference with a litigant’s right to privacy is limited to the
extent necessary to protect the ‘rights of others’ as permitted by Article 8.49 No
additional guarantees are necessary regarding the use of irrelevant information in
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47 [2007] EWCA Civ 493. The prohibition on compulsory production of incriminating information
under Art. 6 of the European Convention on Human Rights only prevents the use of the
information at trial in criminal proceedings: Saunders vUnited Kingdom (1997) 23 EHRR 313.
48 CPR r. 31.22 which effectively replaces the relevantcase law, e.g. HomeOffice vHarman [1983] AC 180.
49 Derby vWeldon (No. 2) The Times (20 October 1988).
litigation in which disclosure is given, for the rules of evidence already prevent the
use of irrelevant information.
Secondly, disclosing parties need a guarantee that any privileged information
reviewed by their opponent during the disclosure process cannot be used without
their consent. Under the current rules, a party has surprisingly limited protection
over privileged material that has been disclosed inadvertently by their servants
or agents. There is no automatic right to the return, or to prevent the use, of
privileged documents disclosed by mistake. CPR r. 31.20 states that where a party
inadvertently allows a privileged document to be inspected, the party who has
inspected the document may use it or its contents only with the permission of the
court. In Al Fayed vCommissioner of Police for the Metropolis,50 the Court of Appeal held
that whether the court grants permission to use privileged material under CPR r.
31.20 was a matter for its discretion, and it would have regard to the existing case
law on restraining the use of privileged material that has escaped the confidential
sphere. Those authorities establish that:
a) Where a party has made privileged documents available for inspection
by mistake, it will in general be too late for him to claim privilege in
order to attempt to correct the mistake by obtaining injunctive relief.
b) The court has the power to intervene to prevent use of documents
disclosed by mistake where justice requires, for example, where
inspection is obtained by fraud.
c) In the absence of fraud, whether a court intervenes will depend on all
the circumstances, though it is likely to grant an injunction if the
mistake was obvious.51
It seems demonstrably unfair that the level of protection afforded to a privilege
holder is reduced merely because the material has been disclosed by mistake.52
The cause of the problem is partly historical. The privilege is a common law
right, whereas the only remedies available to the privilege holder once material
escaped the confidential sphere traditionally lay in equity. While the common
law privilege is absolute, the first rule of equity is that all relief is discretionary.
Furthermore, claims for an injunction to restrain the use of privileged material
were normally based on the equitable doctrine of breach of confidence, and the
exceptions to the duty of confidence are significantly broader than the excep-
tions to legal professional privilege. For example, the iniquity exception to the
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50 [2002] EWCA Civ 780.
51 Ibid. at [16].
52 J. Auburn, Legal Professional Privilege: Law and Theory (Hart: Oxford, 2000) 258–9.
duty of confidence ‘extends to any misconduct of such a nature that it ought in the
public interest to be disclosed to others’.53 By contrast, the crime–fraud exception
applies only to communications made in furtherance of a crime or fraud by the
client.54
The tendency of courts to apply the rules on breach of confidence in applications
to restrain the use of privileged material overlooks the fact that the material in
question is confidential because it is privileged, and lawyer–client communica-
tions are quite different from other categories of confidential information such as
personal data or commercial secrets.
Hollander has also argued that the Court of Appeal’s decision in Al Fayed might be
incompatible with the right to privacy, because it would not be proportionate
interference with a party’s right to privacy to allow the use of documents which
have been disclosed by mistake.55
The law on this issue needs reform. If lawmakers acknowledge that the privilege is
a fundamental right, then they should also recognise that a person cannot waive
fundamental rights by mistake. Of course, a waiver need not be express. Waiver
can be inferred from a person’s conduct, including a decision to provide privileged
material to a third party or where a party relies on legal advice in the course of
litigation. The function of the rules regarding implied waiver are clear: a party
cannot play fast and loose with the privilege, providing privileged information to
some people for some purposes, but maintain the privilege in respect of other
purposes or against other people.56 Nor can parties obtain an unfair forensic
advantage in litigation by selectively disclosing part of their legal advice which is
favourable to their cause.57 But there is nothing in the fact of inadvertent
disclosure that comes close to invoking the rationale for the rules against selective
waiver.
In the interests of fairness, it should be authoritatively stated that inadvertent
disclosure does not constitute a waiver of privilege. Such a rule change is needed
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53 Initial Services Ltd vPutterill [1968] 1 QB 396 at 405.
exception did not apply, but the court declined to grant an injunction restraining use of privileged
material because there was ‘no confidence in an iniquity’.
55 C. Hollander, Documentary Evidence, 10th edn (Sweet & Maxwell: London, 2009) para. 20-05.
56 There is an exception if the party is cooperating with a criminal investigation or disciplinary
proceeding and provides the privileged material to the relevant authority: BvAuckland District Law
Society [2003] UKPC 38; British Coal Corp. vDennis Rye Ltd (No. 2) [1988] 1 WLR 1113.
57 Nea Karteria Maritime Co. Ltd vAtlantic and Great Lakes Steamship Corporation [1981] Com LR 138.
even if none of the disclosure reforms outlined in this article are adopted. If an
open door model is adopted, CPR r. 31.20 must recognise the absolute right of
privilege holders to prevent use of privileged material that has been reviewed by
an opponent during the disclosure process, unless the privilege is waived. For the
avoidance of doubt, failing to exercise the optional right to quarantine privileged
information would not amount to a waiver.
Given the optional rights available to the parties under the open door model, it
may not reduce the costs of disclosure in individual cases. Many parties will
choose to review their own documents for the purposes of quarantining privileged
and irrelevant information. Hence there may still be some duplication as there is
under the current system. But these decisions will rest with the parties, and all
review costs of a party (of his own or his opponent’s files) will be incurred for the
party’s own benefit. What the new model will do is enable the parties to decide
how much time and money they will spend on the disclosure process. Rather than
lawmakers and courts trying to strike the right balance between accuracy, cost
and time for all cases, it allows the parties, whose rights and interests are in
dispute, to decide that balance for themselves on a case-by-case basis.
There have been moves to promote greater flexibility in the disclosure process, to
allow the courts to order disclosure tailored to the circumstances of individual
cases. In his report on the costs of civil litigation, Jackson concluded that a
disclosure rule which offered a menu of options to the court so it can fit the
method of disclosure to the circumstances of the case has much to commend it. A
new rule has been prepared to provide different disclosure options in substantial
cases, which include giving standard disclosure, disclosure by categories and
disclosure using the Peruvian Guano test.58
While the new rule provides more flexibility it still leaves the decisions about the
disclosure process in the hands of the court and, at least in the first instance, the
party required to give disclosure. A better way to give effect to the proportionality
requirement is to put the decisions regarding the disclosure process, and the
burdens of conducting it, in the parties’ hands. The parties are the people best
placed to decide the value of the rights in issue, and how much they are prepared
to spend on enforcing or defending them. This is not to deny the importance of
active case management in securing the overriding objective. The court can best
perform its role by ensuring that disclosure is conducted in an orderly and timely
fashion, to stop the parties engaging in tactics designed to limit or delay
disclosure and resolve any disputes. However, the court has limited capacity to
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58 Jackson, above n. 2 at ch. 37, para. 3.11; draft CPR r. 31.5A.
decide ab initio what documents should be disclosed and how exhaustive the
searches for them should be. Justice Jackson has flagged the possibility that under
the new rule the court could order disclosure to be conducted by the open door
method. This is welcome, though there is no obvious reason why the option should
not be explicitly recognised, if not made the default option.59
Giving the parties the power to decide how much they will invest in disclosure
should reduce costs and make the process more efficient in many cases. This is
because the lawyers who conduct the disclosure exercise on behalf of their clients
will be answerable directly to their clients, rather than carrying out a court order
for the benefit of the opponent. Accordingly, the parties will have much greater
capacity to control the costs of disclosure.
Making it workable
One potential objection to an open door disclosure model is that it could increase
the number of cases where disclosure works as a ‘cloud’ because the party seeking
disclosure must trawl through a mass of marginally relevant information. The
above analysis has indicated why this argument is not convincing as an objection
to broad disclosure—to give disclosure someone has to search the haystack, and to
define the needle for which that person is searching in narrower terms can make
the hunt more, not less, difficult and time-consuming. But what can be the world’s
best archive system to its creators can look like complete chaos to the uninitiated.
Therefore the obligation to open one’s door must be accompanied by a duty to
explain to the opponent where the disclosing party’s documents are kept, and
what, if any, filing system has been used. This is consistent with the parties’ duty
to cooperate with each other and the court in achieving the overriding objective,
as recognised in CPR r. 1.3. The duty does not require a judgment as to relevance.
Rather, it requires disclosing parties to make available their knowledge as to
where their documents are kept and how they have been stored.
There are also precedents that can provide at least a rough guide to how this open
door system might work in practice. Anton Piller orders effectively operate as a civil
search warrant.60 They allow a party or prospective party to enter a person’s
premises and obtain copies of information relevant to the actual or anticipated
claim. Whereas Anton Piller orders are directed towards the need to preserve
evidence, and are made without notice to the respondent, this would not be the
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59 Speech by Jackson LJ, ‘Controlling the Costs of Disclosure’, 28 November 2011, available at
24112011>, accessed 6 May 2012.
60 Anton Piller KG vManufacturing Processes [1976] Ch 55; Civil Procedure Act 1997, s. 7.
case under an open door model. As discussed in the next section, there will be a
number of situations where it would be more appropriate for disclosure to be
given by some other method, and the parties have a right to be heard on this. The
process will also work most smoothly and efficiently where the parties cooperate
with each other; they should be encouraged to confer over the steps and timelines
for giving disclosure.
Civil search orders are usually carried out by independent solicitors to avoid the
antagonism that may arise when solicitors of an opponent search the other party’s
premises.61 However, this safeguard would normally be unnecessary under the
open door model, mainly because the obligation is reciprocal. In addition, any
inappropriate behaviour during the review process (for example, interfering with
an opponent’s files or removing information without giving notice to the other
party) should lead to that party forfeiting his right to disclosure, and disciplinary
proceedings against the lawyer. The court should also retain the power to order
the review process to be conducted by independent solicitors where there is a real
risk that a party may abuse the process.
Proposals for an open door disclosure model have been made in the criminal
sphere, most notably by de Grazia in her review of the UK Serious Fraud Office in
2008.62 De Grazia noted that the disclosure process in serious white collar crime
cases was far more expensive than the disclosure process for the same type of cases
in New York, even though the scope of disclosure was very similar in both
countries. The difference was that New York’s law enforcement agencies operated
a ‘keys to the warehouse’ system. This involves giving the defence free access to
unused material in searchable electronic or other formats. De Grazia recom-
mended that this system could be employed in England, arguing that the system is
rational in that it vests decision-making in the party best equipped to decide what
material is helpful or not. It was also simple to administer, and cost-effective for
the disclosing party.63
De Grazia’s recommendations on disclosure were not adopted,64 apparently
because of concerns that it would be incompatible with the prosecution’s
continuing obligation to provide disclosure throughout the proceedings. This
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61 CPR Practice Direction 25—Interim Remedies and Security for Costs, para. 8.1.
62 J. de Grazia, Review of the Serious Fraud Office,Final Report (June 2008), available at
2012.
63 Ibid. at 11.
64 Attorney General’s Office, ‘Serious Fraud Office: Review by Jessica de Grazia’, Press Release, 10 June
2008.
objection is unconvincing. It is true that an open disclosure model cannot replace
a party’s obligation to disclose relevant documents that come into his possession
after an order for disclosure has been complied with. This does not mean,
however, that it cannot sensibly be used as the means of giving disclosure of all
relevant documents that are already in a party’s possession when disclosure is
ordered by the court. The bulk of a party’s disclosure will normally consist of
material already in his possession. An open door model, as de Grazia argues, is the
most efficient and fairest way to provide this disclosure.
Exceptions
While the open door model should be the default option for giving disclosure, it
would be undesirable if it was the only option available to the court. The reasons
for adopting the model—namely promoting greater efficiency—must always be
borne in mind. Where disclosure can be given efficiently by some other method,
without the intrusive features of the open door process, then the court should
have the power to order that disclosure be given by that alternative method.
There are three situations in which the open door model may be inferior to other
forms of disclosure. The first is where the relevant documents are limited in
number and readily identifiable, so that the disclosing party can easily produce
the material with relatively little cost and with little risk that the disclosure would
be incomplete.
The second situation is mass disputes involving multiple parties. Where repeat
players are litigating in respect of the same issue many times over, considerable
economies can be made by ordering them to give general discovery just once, and
allowing each opponent, both in the present case and in future cases, to access
that general disclosure, whilst retaining the power to order additional specific
disclosure relevant to an individual case. Unfortunately, even the current
disclosure rules do not provide for such flexibility because they are designed
around a traditional model of bipolar litigation between two independent parties.
The capacity for victims of mass harm to obtain redress on a collective basis is
limited in England,65 and when claims arising out of the same or similar circum-
stances are heard individually, the court is not able to order that disclosure in one
proceeding should stand as disclosure in the other.66 Where there are cases
involving a common party and common issues, the court should have the power to
order that disclosure in one proceeding be available in the other proceedings.
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65 R. Mulheron, ‘Justice Enhanced: Framing an Opt OutClass Action for England’ (2007)70 MLR 550.
66 Though a repeat defendant might conduct more limited searches in subsequent litigation, and
argue that they meet the standard of ‘reasonable searches’ in light of the searches they made in
previous litigation.
The third situation where it may be appropriate to depart from the open door
model is where there is substantial resource inequality between the parties. A
valuable benefit of broad disclosure is that it helps iron out resource inequality.
Disclosure requires parties to provide relevant documents to their opponents,
even if they are also publicly available. As a consequence, a party with limited
means, who may not have sufficient resources to collect all relevant information
in the public domain, can still obtain that information directly from an opponent
if it is in the opponent’s possession or control. In cases where there is a dramatic
disparity in resources and information available to the parties, an obligation to
open the door can be of limited assistance to the smaller party. The sheer size of
the larger party means that they may not be opening one door, but rather
hundreds of doors in multiple cities in multiple continents. Where a party seeking
disclosure lacks the resources to search the disclosing party’s files adequately, and
it would not be an excessive burden on the disclosing party to physically provide
disclosure, the court should be able to order the disclosing party to do so. The US
rules on attorney work product might be used as a model in this regard.
Individuals seeking disclosure of an opponent’s work product must show,
amongst other things, that they would suffer ‘undue hardship’ if required to
obtain the material through their own efforts.67 In addition, a party seeking
disclosure by the standard method would need to establish that the other party
would not suffer undue hardship if required to give disclosure using that method.
4. A note about e-discovery
One aspect of disclosure that is becoming increasingly important is electronic or
e-discovery. This includes disclosure of information stored in electronic format,
and making information available for inspection in electronic format.
Electronic discovery can be extremely expensive because of the sheer volume of
information that can be generated by companies and stored on hard drives,
servers, back-up systems and other electronic devices or media (including
metadata about the data stored, for example the time it was created, who edited it,
and who accessed it), and the expense of preserving the information for the
purposes of litigation. However, the search and review costs of e-discovery are
more manageable because of the capacity to search electronic data for specific file
names and for files containing certain words or phrases. As Jackson has observed,
there are sophisticated software programs available (i) to whittle down as far as
possible the potentially relevant documents which will be passed to the lawyers
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67 Federal Rules of Civil Procedure, r. 26(b)(3).
for review and (ii) to enable the lawyers to search and organise documents passed
to them.68
Because of the special problems and potential associated with e-discovery, juris-
dictions are developing special rules for the provision of e-disclosure. England
adopted a Practice Direction for disclosure of electronic documents in 2010. Not
surprisingly, it combines elements of both the traditional method for giving
discovery and an open door model. In particular, because electronic files can be
searched ‘objectively’, it is possible, and desirable, for the parties to agree specific
search criteria for the disclosure process: key words, dates, names, etc. and the
storage systems that will be searched.69 The disclosing party is also encouraged to
conduct further qualitative reviews to locate irrelevant material (that coinciden-
tally matched the search criteria), as well as full reviews of key files for relevant
information that may not have been caught by the original search.70 Under an
open door model this qualitative review should be the responsibility of the party
requesting disclosure, though the disclosing party would have the right to
quarantine irrelevant information following the same procedures set out above.
Practice Direction 31B encourages an additional full (and presumably manual)
review of key files because of concerns that relevant documents may not be
captured by a key word search. This concern is misplaced. Certainly automated
searching can capture irrelevant data, but providing the software is working and
meets appropriate quality specifications, it will not miss relevant information,
unless the key word searches are themselves inadequate. If not enough is known
about which words and phrases to search for at the beginning of the disclosure
process, this can be dealt with by providing electronic disclosure in stages.71
5. Conclusion
This article has advocated an alternative system for disclosure based around an
obligation on the parties to open their doors to each other. The system is designed
to be more efficient because it places the decision about how much disclosure
there should be, assessing the potential benefits against the cost and time to
obtain them, with the party who is seeking disclosure. A party who wants to
ensure that no stone is left unturned in the search for the smoking gun can
reasonably be expected (and may prefer) to do the searching. Parties giving
disclosure should be given guarantees against the collateral use or further
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68 Jackson, above n. 2 at ch. 37, para. 2.2.
69 CPR Practice Direction 31B—Disclosure of Electronic Documents, para. 9.
70 Ibid. at paras 25–27.
71 As catered for by ibid. para. 23 and CPR r. 31.13.
disclosure of information obtained from them during the disclosure process. They
also have the optional right to quarantine privileged and irrelevant information
before opening the door. This open door model would provide greater protection
to privilege than the existing law which provides weak and qualified protection
for privileged material that is inadvertently disclosed.
Given the purpose and limits of the civil litigation process, there is no perfect
system of disclosure. The open door model should not be used in every large case.
However, in most cases, the best way of ensuring that the disclosure works at
optimal efficiency is to allow the parties to decide for themselves how much they
want to invest in the process. Jackson LJ’s recognition that the court should have
the power to order open door or ‘keys to the warehouse’ disclosure is a step in the
right direction.
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Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
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Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
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Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting