This was an interesting article by the team at Osborne Clarke which focused on a specific area of the Disclosure Pilot. The Disclosure Pilot has now been extended for another year until the end of 2021 so it will be a while before the results of the scheme are published and potentially adopted in more places.
As the piece says, Known Adverse Documents are obviously important to consider, and perhaps even more so depending on the model of disclosure followed. But how you do that and whether you locate, or search is an interesting legal question. As the authors state in this piece, the dividing line is often hard to find or blend.
There are a wide range of tools and techniques available to assist with this – the key is using the right approach for the right question.
For more insight on the Disclosure Pilot take a read of the following to find out about the 3C’s (cooperation, confidentiality and control):
Please reach out if you’d like to know more.
"Locating" and "searching" for a document might be said to be the same thing, but a party is not searching to find adverse documents in the first place, instead it is tracking down the KAD it already knows it has. The danger is that even that process of 'locating' runs the risk of turning up KADs that were not already known about, or references to likely KADs, which might require further locating. The line between "locating" and "searching" may be hard to find.