If you thought that predictive coding (or whatever you choose to call it; I came across Black Box Coding and Easy Button Review recently) was the hot topic of the moment, a close second must be reports that the courts are getting to grips with a whole range of issues arising out of the disclosure process.
It is perhaps unfortunate that hard on the heels of their client being ordered to pay £135,000 by way of a wasted costs order for failings in the disclosure exercise [see What a Whopper, 8th March, 2012], Herbert Smith are once again in the firing line over what Mr Justice Richards called a “lackadaisical” approach to disclosure.
A report in The Lawyer on 14th March “Richards J slates Herbert Smith’s ‘lackadaisical’ approach to disclosure” reveals that there was a failure by Herbert Smith’s client to disclose efforts he made to raise equity to purchase a disputed shareholding.
Richards J said to Counsel instructed by Herbert Smith:
“Let me tell you, I am not quite sure that your side has fully recognised the significance of that letter that Herbert Smith sent following my direction. I do not know what went wrong there, but that was a serious step, as I hope I indicated in my judgment. This is disclosure which should have been done weeks ago…
There is a sort of lackadaisical view in relation to this category.”
The trial has had to be postponed to allow deficiencies in the disclosure exercise to be rectified.
It is impossible to argue now that e-disclosure is not mainstream. There is a growing body of evidence in the cases that failure to grasp the problem only leads parties into difficulty and in extreme cases wasted costs orders and loss at trial.
The message must be that lawyers need to think about instructing an expert in this area as early on in the case as possible if such problems are to be avoided.