HKA’s Hamish Clark discusses how documentary evidence could be approached in an age of ever-increasing volumes of data.
My first job as an apprentice in an architect’s office was to prepare eight sets of drawings for a contractor carrying out a major rehabilitation scheme in the New Town area of Edinburgh. There were perhaps 20 drawings in each set. A straightforward exercise it may seem, but it involved watercolouring each drawing to differentiate between the materials built into the new construction. It took a week. The “technology” limited the amount of documentation that could be produced in the time available.
The production of contract documentation has changed. Drawings, schedules, programmes, contracts, bills of quantities, specifications and meeting minutes are retained in multiple locations and formats. Numerous revisions to drawings are transferred between the parties. Separate emails contain the same chain of communication, and attachments duplicate documents stored elsewhere.
Despite best intentions, the construction industry is not renowned for its management of information, and this data is stored with inconsistent naming conventions and labels. For an expert carrying out an investigation, the only way to establish the content of a document is to open the file. More often than not, it is not what they are looking for.
For the legal teams and experts involved in engineering disputes, the consequence of this increased documentation is often what appears to be a mass of impenetrable data. Experts (and equally so the legal teams) are often confronted with data sets comprising hundreds of thousands of documents. Commonly, references cannot be cross-referenced with familiar descriptions, the consequence being that there is no insight into the document unless it is opened. Equally, documents may not be grouped or managed, and experts have to painstakingly work their way through the set to search for the relevant document without the assurance that it exists.
The current procedures followed in litigation and arbitrations do not appear to reflect the changes that have occurred in the production of data. Despite the developments in information technology, the time spent by both experts and legal teams in sorting data has increased exponentially with a proportionate increase in the cost of litigating. Anecdotal evidence is that possibly 40 per cent of experts’ time can be spent looking for documents.
Not only is this exercise tedious, critically, but it also cuts across a train of thought, and momentum is lost.
This process is, of course, replicated by the expert representing the opposing party. The same documents, searches and rabbit holes are explored in the hope of finding the critical document.
Ultimately, the opposite experts confer. Each reveals the data to which it has relied, and joint statements are prepared. The issues narrow, and the hearing explores the experts’ differing opinions about the significance and the interpretations of the information contained in the, now shared, data set.
So, what was the benefit of the independent searches? Did these searches benefit our clients? Did they reveal to the lawyers the incontrovertible incriminating evidence, the “smoking gun” that would win the day? Ultimately, did the process assist the tribunal in arriving at the best possible decision in a timely and cost-effective manner?
It is helpful to consider the changes in common law courts and international arbitration that have taken place over the same period of technological development.
The thrust of reform over the past 30 years in relation to expert evidence has been consistent. Inefficiency in the process was a key issue highlighted in the Woolf Report of 1994. Lord Woolf expressed concerns regarding the disproportionate cost, inefficiency and complexity of the civil procedure system in England and Wales, and identified that the proliferation of expert evidence was a significant contributor to these issues.
In recognising the experts’ overriding duty to assist the courts, Lord Woolf’s proposed reforms which included a recommendation that the practice of ordering joint conferences between the experts to narrow the issues and produce a joint report should be encouraged. Lord Woolf was encouraging the experts to come together to narrow the differences.
The Civil Procedures Rules 1998 (CPR) Pt 35 implemented the recommendations of the Woolf Report to curb expert bias by including a requirement that the expert’s duty to the court overrides “any obligation to the person from whom experts have received instructions or by whom they are paid” and that “experts should consider all material facts, including those which might detract from their opinions”.
In Australia, the early engagement of experts was addressed in procedural rules in both New South Wales and Queensland. The 2005 New South Wales Law Reform Commission Report No 109 and Issue Paper No 25 (2004) on Expert Witnesses recommended that efficiency would be generated by requiring experts to consult prior to the hearing.
Queensland went further by providing for the appointment of experts before proceedings have begun.
The Australian Federal Court Expert Evidence Practice Note No 25 of 2016 provides guidelines that includes, among other things, that the expert must give details of any materials they have been instructed to consider.
The thrust of these regional court reforms is reflected in developments in international arbitration.
The IBA Rules on the Taking of Evidence in International Arbitration 1999, amended in 2010, provides guidelines for parties and tribunals to facilitate the efficient and economical conduct of the arbitral process. This includes the evidentiary procedure. Consistent with Lord Woolf’s recommendations, the Rules seek to provide transparency in the evidentiary proceedings. The Rules require that expert reports contain an expert’s statement, which emphasises the overriding duty of the experts to the tribunal and not their instructing party.
Similarly, the CIArb Protocol for the Use of Party-Appointed Expert Witnesses in International Arbitration provides guidance on a procedure that requires experts to first enter into discussion to identify and agree upon the issues on which they are to provide an opinion. The experts then prepare their reports on the terms that they have agreed between them.
The Prague Rules, while not intended to replace arbitration rules, provide explicit guidance on fact-finding. Article 3.2 of the Rules (“Fact Finding”) states:
In particular, the arbitral tribunal may, after having heard the parties, at any stage of the arbitration and at its own initiative:
a. Request any of the parties to submit relevant documentary evidence or make fact witnesses available for oral testimony at the hearing.
In his paper, “Party Appointed Experts in International Arbitration – Asset or Liability?”, Professor Doug Jones AO suggests “a practical framework for the taking of party-appointed expert evidence that goes beyond a statement of independence”. Professor Jones states that his proposal seeks to limit “the differences between experts prior to the giving of evidence”, and that the framework is intended to “ensure that each party-appointed expert’s report squarely engages with the issues raised by the other, rather than passing like ships in the night.”
The third element of his proposal suggests that the arbitral proceedings should “defer the production of all expert reports until all factual evidence (documentary and witness) is available”. Specifically, in respect of the facts, Professor Jones states:
It is essential that experts providing opinions do so on the basis of the same facts. An expert should not have any more or any different information from the other experts in the same field. Thus, the reports should be deferred until the production of the factual evidence (both documentary and lay witness) to them to be produced in light of the fullest knowledge of the facts and circumstances of the matter.
These developments reflect a consistent trend evident in reforms and informed practice over the past 30 years. The key drivers include:
In practice, however, the sequence of events is otherwise. Experts often embark on the preparation of a full report to address issues determined by their client’s legal team, on the basis of either a narrow or contrastingly voluminous data set. The belief is that the data set held by the client contains the smoking gun, and that it is advantageous to hold that documentation close until such time as the expert report is submitted. There then follows an exchange of expert reports, at which time the true extent of the documentary evidence and the nature of issues becomes clearer.
None of this is satisfactory. For the experts, there follows a review of new documentation, a reappraisal of the issues, and often a significant redraft of their reports. Not only is this costly for the clients, but time limitations may adversely affect the quality of the report. Furthermore, experts’ opinions may have to shift away from opinions previously held due to the production of new evidence. This can be challenging for the expert and legal team, and frustrating for a client.
Is it now time to consider an alternative process of managing documentary evidence to address this exponential growth in data? Should the process not provide a mechanism ensuring that cases do not fail simply because of the weight of impenetrable data and at the same time addressing the cost, inefficiency and complexity of managing large data sets? At the heart of this, however, lies the dilemma. How do the parties arrive at an agreed data set at an early stage of the process, while still complying with rules of privilege and disclosure?
Professor Jones proposes that experts do not prepare their reports until all the documentary evidence is available. Furthermore, he proposes that experts confer and agree upon the issues and their differences of opinion prior to writing their reports. For this to be constructive, the experts would need to agree upon a common data set before conferral. Perhaps, therefore, tribunals should take an active role in ensuring that all the evidence is available prior to conferral. Potentially, parties could share the cost of a document search to determine the relevant documents from which each party can then select its relied-upon documentary evidence.
This will, of course, be resisted by the legal representatives wishing to hold evidence face down in the hope that they hold the smoking gun. That is understandable, but how often is the smoking gun revealed? Does not the evidence come out in any event once reports are exchanged? Is it not better that this is produced as early in the process as possible and considered by the experts?
With the benefit of technology-assisted reviews, the data set can be culled of non-relevant data and the documents can be prioritised and classified into broad categories. Furthermore, the quality control of this process can be optimised rather than relying upon a perhaps variable human control. If the parties were directed to share this cost and a consistent approach to indexing adopted, the efficiencies would be improved, and costs reduced.
Such a move would require a sea change in the approach to prosecuting a case, but the benefits could be significant. Experts would identify relevant data sooner and would prepare reports focused on the differences between them. Consequently, there would be less time spent revisiting and redrafting reports; efficiencies would be self-evident; and significant savings would be made. Are clients’ interests not best served in these circumstances and experts’ duties to the courts better fulfilled? Should the parties not now be required to put their cards on the table?