Disclosure Management Plans: what does the court expect?

Anyone involved in significant litigation will be all too familiar with the time and cost associated with disclosure. It’s a task which can derail the expeditious resolution of a dispute.

The Queensland Supreme Court has shown it will relieve parties of their ordinary disclosure obligations in favour of a tailored disclosure management plan where appropriate. The purpose of a disclosure management plan is to limit the number of documents for review by setting out a proportionate and efficient approach to disclosure involving reasonable searches for documents.

Disclosure management plans are not new and were introduced into the Queensland disclosure landscape in 2012 via Supreme Court Practice Direction 11 of 2012.[1] Although the Practice Direction provides some guidance as to the type of information to be included in a disclosure management plan, the precise content and level of detail required has largely been left to agreement between the parties (which is understandable).

A recent case in the Queensland Supreme Court sets out the Court’s expectations in respect of the negotiation of a disclosure management plan. In Redpath Contract Services Pty Ltd v Anglo Coal (Grosvenor Management) Pty Ltd [2017] QSC 149, the Court considered a plan which Redpath hoped would reduce the number of documents that it would have to review from 715,000 to 50,000 (i.e. approximately 7% of the total documents).

Setting the scene

Redpath had filed proceedings against Anglo seeking approximately $16m under a construction contract. At an earlier hearing, the Court had made orders relieving the parties of their ordinary disclosure obligations and requiring the parties to confer and seek to agree upon a disclosure management plan. Among other things, the plan had to specify the techniques and parameters[2] the parties could use to limit the review of documents.

The parties did not agree a disclosure management plan. Redpath had provided Anglo with a proposed plan which, broadly speaking, provided for the body of potentially relevant documents to be refined by date filtering and by excluding or including specified domain names and email addresses and by keyword searches of the balance.

Anglo opposed Redpath’s plan. It proposed an alternative plan which provided for the parties to use their best endeavours to reach agreement upon “categories” of documents for disclosure. Of Anglo’s 12 proposed categories, 11 were expressed as being documents “relevant to” a particular issue or issues in the proceeding. Anglo then proposed that searches be conducted to identify documents within the agreed categories that were directly relevant to an allegation in issue on the pleadings. However, despite the initial orders made by the Court, Anglo did not identify any particular search parameters to be adopted by the parties and instead suggested that the parties agree to “limit their review of documents to search parameters that are identified and explained in the Disclosure Statement served with the parties’ list of documents.”[3]

Search techniques and parameters must reduce the volume of disclosure

The Court rejected Anglo’s plan. Treating documents “relevant to” an issue or issues as a separate category did not constitute a meaningful attempt by Anglo to limit the parties’ disclosure obligations in circumstances where the categories did not omit many significant issues in the case. The Court was also unimpressed with Anglo’s proposal to defer agreement on search parameters given the Court’s earlier order to the contrary.

In the Court’s view, there was nothing to suggest that Anglo’s proposal would make the disclosure task confronting Redpath more manageable.

Be prepared at the close of pleadings to meaningfully discuss search techniques and parameters

Anglo’s reluctance to agree upon and specify keywords in the disclosure management plan was driven in part by its belief that keywords could not be finally agreed prior to any substantive review of the documents taking place.

It’s understandable that parties may be reluctant to commit to search techniques or parameters early in the life of a matter without a full knowledge of the party’s own documents. Disclosure is also an iterative process with search techniques and keywords being constantly refined as the review process unfolds.

Redpath makes clear that the Court will expect parties to have given detailed and early consideration to the content of a disclosure management plan. Generally, the Court will be seeking the parties’ agreement on a disclosure management plan in the period that follows the close of pleadings. Disclosure, therefore, is a forward looking exercise which requires the parties to have one eye on the best approach to disclosure from the outset of a dispute. It is not something that can be considered for the first time once the final pleading is filed and served.

Once pleadings have closed, parties must be in a position to propose sensible search techniques and parameters. Keeping your powder dry is not an option. This will mean collecting and considering documents before the close of pleadings and also giving thought to relevant documents that the opposing party may hold.

Give yourself some comfort and breathing space

There are steps that parties can take when faced with concerns about giving commitments in respect of disclosure shortly after pleadings have closed.

Early collection of your documents (or at least a sample) and using early case assessment methodologies such as data analytics, sampling or developing a predictive coding model will assist in providing you the confidence to commit to effective and defensible search techniques and parameters.

A consultative and cooperative approach between the parties in the negotiation of a disclosure management plan (involving testing of the number of documents by date-range, author, keywords and other filters) may also provide comfort about the reasonableness of any search parameters that might be agreed.

The disclosure management plan itself may set out a staged process for the parties to agree search techniques and parameters. At a minimum, the plan should give the parties the flexibility to seek changes to the search techniques and parameters throughout the review process if there is a reasonable basis to do so. The search techniques and parameters do not need to be common between the parties. In Redpath the parties were permitted to have different document management plans which will most likely result in different search techniques and parameters.

Don’t wait until the last minute to raise concerns

Anglo argued that neither it nor the Court could be satisfied that 500 domain names and 1,000 email addresses could be pre-emptively excluded, as Redpath’s plan proposed. The Court rejected this submission noting that Anglo had failed to put on any evidence to show that any of the domain names or email addresses were in fact relevant. In particular, there was no evidence of Anglo requesting Redpath to explain the basis for the exclusions, nor any evidence of Anglo testing the reasonableness of the exclusions itself.

Anglo also pointed to an anomaly in Redpath’s plan. Namely, emails classified as being relevant (i.e. because they contained a relevant email address or domain name listed in Schedule 1 of the plan) could nonetheless be excluded regardless of the content of the email if they also contained an irrelevant email address or domain name listed in Schedule 2 of the plan. A powerful example was an email between two relevant recipients being excluded because the email was also copied to an irrelevant recipient. The Court did not entertain this objection by Anglo because it was made on late notice without a satisfactory explanation for doing so.

These examples make clear that concerns about proposed search parameters and techniques need to be raised early and any opposition to a proposed course of action needs to be supported by evidence.

Conclusion

Disclosure can be a burden, but adopting a proactive approach to the task and the negotiation of a disclosure management plan can make the burden more manageable and ensure that your litigation remains on-track for a timely and cost-effective resolution.