DISCLOSURE PILOT MONITORING in the BUSINESS AND PROPERTY COURTS THIRD INTERIM REPORT ‘AN ANALYSIS OF QUESTIONNAIRE FEEDBACK FROM LEGAL PRACTITIONERS’ Prof Rachael Mulheron School of Law Queen Mary University of London 25 February 2020 TABLE OF CONTENTS Preface . 5 1. The Methodology and Data Set. 7 A. The number of cases the subject of respondents’ experiences. 7 B. Location of Disclosure Pilot experience. 8 2. Initial Disclosure. 10 A. Reasons given for parties’ agreements to dispense with Initial Disclosure. 10 B. Evaluating the threshold at which the obligation ceases. 12 C. Reasons given for supporting the requirement of Initial Disclosure. 14 D. Reasons given for abandoning the requirement for Initial Disclosure. 15 E. Criticisms of the drafting of the Initial Disclosure provisions, according to Respondents.. 16 Key Summary Points . 19 3. Adverse Documents. 20 A. The definition of an ‘adverse document’.. 20 B. How to tell whether an adverse document is ‘known’.. 22 C. The starting point: When adverse documents have to be disclosed. 24 D. The ending point: The Disclosure Certificate. 26 E. Litigants-in-person.. 27 F. Patent cases. 27 G. What if no Initial Disclosure?. 27 Key Summary Points . 28 4. Preservation of Documents. 29 A. The types of difficulties encountered — strict versus reasonable.. 30 B. The types of difficulties encountered — for lawyers and their clients. 30 C. The types of difficulties encountered — for recipients of the notices. 34 D. Interplay with other regimes. 35 Key Summary Points . 36 © Rachael Mulheron 2020 2 5. The Extended Disclosure Models . 37 A. Agreement on disclosure models.. 37 B. How discussions about Extended Disclosure occurred. 38 C. Counsel involvement. 39 D. Comments about the Models — general. 40 E. Comments about the Models — specific.. 42 Key Summary Points . 45 6. The List of Issues for Disclosure. 46 A. List of issues – general comments. 46 B. A ceiling on the list of issues?. 48 Key Summary |Points. 49 7. The Disclosure Review Document.. 50 A. Views on the DRD — general . 50 B. Views on the DRD — formatting. 53 C. Some specific suggestions for DRD amendment.. 55 D. The efficacy of the DRD. 57 E. Issues arising from Section 1B of the DRD.. 57 F. The costs estimate required. 59 G. Increase of costs due to the DRD.. 61 H. Miscellaneous difficulties with the DRD. 61 Key Summary Points . 63 8. Technology-assisted Review.. 64 A. Types of TAR. 64 B. Views for and against TAR . 65 C. Feasibility of identifying TAR in the DRD. 67 Key Summary Points . 68 9. Narrative Documents. 69 A. The concept of ‘Narrative documents’. 69 B. What about the presumption of non-disclosure under Model D?. 70 Key Summary Points. 72 10. Timings Embedded in the Pilot. 73 A. Criticisms of the timings. 73 B. Inconsistency with court guides.. 76 © Rachael Mulheron 2020 3 C. Support for the timings. 77 Key Summary Points. 78 11. Disclosure Guidance Hearings.. 79 A. Concerns about Disclosure Guidance Hearings. 79 B. Drafting suggestions for Disclosure Guidance Hearings . 81 Key Summary Points. 82 12. Case Management Hearings. 83 A. Judicial preparedness.. 83 B. CMCS — support. 83 C. Problems with the first CMC.. 84 Key Summary Points . 85 13. Adverse costs orders. 86 14. Unrepresented Litigants.. ..