PD 57AD disclosure: the model is not what decides the cost

Issues for Disclosure decide the bill

An Issue for Disclosure is not a pleaded issue. It is a question that requires documents, beyond the documents already before the court, to be resolved fairly. The two lists overlap but they are not the same list, and the drafting habit of running down the pleadings and converting each contested paragraph into an issue produces a document that is both too long and wrong in kind.

The cost consequence is direct. Every issue carries a model, a set of custodians and a set of search parameters. An issue that could have been resolved on the contemporaneous contract documents, but has been drafted at the level of generality of the pleaded case, pulls an email review behind it that nobody needed. Ten well drafted issues will produce a cheaper and better disclosure exercise than four broad ones, because the granularity is what allows a narrow model to be applied where a narrow model is appropriate.

This is also where the negotiation actually happens. Parties who concede the model and fight the issues are in a stronger position than parties who do the reverse, because the issue list defines the scope that any model is then applied to.

Model C is the one nobody asks for

Model D is the reflex request, and it is asked for in a great many cases that do not need it. Model C, request-led search-based disclosure, requires a party to identify the particular documents or narrow classes of document it actually wants, and the other side to search for those. It demands more thought at the outset and it produces a much smaller exercise.

The reason it is under-used is not that it does not work. It is that it requires a party to commit to knowing what it is looking for, which feels exposing when the alternative is to ask for everything and read it later. Courts are considerably more receptive to Model C than the frequency of requests for it suggests, particularly on issues where one side plainly holds the documents and the other can describe what it needs.

Model E is worth mentioning only to say that it is exceptional and is treated as such. A request for it is more likely to damage the credibility of the rest of a party’s disclosure position than to succeed.

The adverse document duty does not depend on the model

The obligation to disclose known adverse documents runs whatever model is ordered, and it runs even under Model A, where there is no search-based disclosure at all. Agreeing Model A or Model B on an issue is not an agreement that nothing will be disclosed on it.

Two practical points follow. The first is that the duty attaches to documents that are known, which imports a real obligation to have asked the client the right questions rather than a passive one. Knowledge here includes what the party actually knows following the searches it has in fact carried out, and a party that has looked at documents in another context does not un-know what it found.

The second is that this duty is a continuing one and survives the completion of the disclosure exercise. Documents that surface during witness preparation, or while briefing an expert, do not fall outside it because the disclosure phase has closed and the budget for it has been spent.

The Disclosure Review Document is a joint document

It is drafted as though it were a pleading by parties who then arrive at the hearing with two irreconcilable versions and a long list of disagreements the court is invited to resolve. Courts have been consistently unimpressed by this, and the costs of an over-lawyered Disclosure Review Document are not readily recovered.

The document is meant to record what the parties have agreed and to isolate the narrow points they genuinely cannot. Where it instead records a negotiating position, the party that has taken the unreasonable one is easy to identify from the face of it, which is the opposite of what its author intended.