Over Disclosure: ‘Mass-Reading’ No Longer Risks Overlooking Key Documents

An order for disclosure is usually limited to specific documents and information, or classes of documents. Unusually, ‘over disclosure’ was recently authorised by the court – but on what basis? The specialist commercial lawyers at ParrisWhittaker are experienced in securing disclosure in the course of litigation throughout Jamaica and elsewhere. 

Disclosure is a key stage in litigation. If a party’s disclosure obligations are not properly complied with, the court can make an order for disclosure of documents or information which are considered necessary to the party’s case. In this digital age, disclosure of electronically-held documents and information – e-disclosure – can be particularly complex but just as vital. 

In a highly complex and difficult competition case, the UK High Court made an order for “over-provision” of documentation by one of the parties. Could wider disclosure become more frequent as a result? The ruling has persuasive authority on the courts in Jamaica, The Bahamas and surrounding region. 

What’s the background?

Prior orders had been made for disclosure in accordance with the standard disclosure regime set out in the UK’s civil procedure rules. However, it became evident this had not worked satisfactorily and risked proving a “fatally flawed process”. 

For instance, there was a risk that important documents could be overlooked in the course of electronic filtering reducing a large body of e-documents to a manageable size. However, the judge concluded that “massive overdisclosure” no longer gives rise to the risk that the really important documents will get overlooked. The risks of so-called “dumping” no longer requires mass reading by lawyers on the other side given that they will have their own electronic review processes, which can be used in a much more targeted way. 

The judge concluded that an over-inclusive “massive overdisclosure” regime should be adopted, subject to four conditions being satisfied:

1. The real risk that if the standard disclosure regime was adopted, relevant documents would be missed
2. No danger arises of the process being used to oppress any of the parties to the litigation 
3. The risk of inadvertent disclosure of privileged material was contained (it can never be eliminated).
4. Confidential material, even if it was irrelevant, was to be appropriately protected.

The judge was satisfied these conditions were met in this case. He therefore revised the earlier disclosure orders and made a bespoke order for over disclosure. 

What does this mean?

The ruling confirms the court’s willingness to employ a flexible approach where standard disclosure regimes and models amounted to a flawed process and, therefore, unfairness to either or both parties. Though the case is particularly complex, the decision shows that judges are alert to the challenges raised by electronically stored information – and the efficiencies that the latest electronic review processes bring to the table.

For expert advice on your commercial disputes, speak to the experienced commercial litigation solicitors at ParrisWhittaker. You can contact us at info@parriswhittaker.com or +1.242.352.6112

1Genius Sports Technologies Ltd v Soft Construct (Malta) Ltd [2022] EWHC 2637