Massive Over-Disclosure in the UK May be The Hallmark of a New “Bespoke Disclosure Regime” For Our Digital Age

By: Simon Yeung and Johanna Hoyos (Constantine Cannon)

In a radical move, Mr Justice Marcus Smith is ushering in a new disclosure option in England by ordering “massive over-disclosure” of documents by the parties in Genius Sports Technologies Ltd v Soft Construct (Malta) Ltd. Essentially, he ordered that the entire pool of documents – minus irrelevant or privileged ones – should be disclosed for the receiving party to search, in order to avoid the “real risk” that important documents would be overlooked and not disclosed.

The case, which involves competition and intellectual property claims, was heard jointly before the Competition Appeal Tribunal of the United Kingdom and the High Court of England and Wales. Justice Smith (Smith J) is President of the former and a Judge in the latter.

In the High Court claim, the parties had been ordered to provide disclosure under the models provided for under CPR Part 31 and Practice Direction 51U[1] but there remained significant issues between them on disclosure and the disclosure models to adopt. Although there had been a two-day case management conference in July, that was not long enough to address the parties’ differences. Justice Smith ordered a second case management conference at the end of the vacation to resolve these differences…

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