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Disclosure discontent; Why legal professionals say The Disclosure Pilot Scheme is not fit for purpose

Disclosure discontent; Why legal professionals say The Disclosure Pilot Scheme is not fit for purpose 1

By Phil Beckett, Managing Director and Head of Disputes and Investigations Europe and The Middle East and Gary Foster, Senior Director at Alvarez & Marsal

In litigation, data matters more than ever, but the way disclosure is now being handled is causing quite a bit of concern within the legal sector specifically. Our recent research regarding the Disclosure Pilot Scheme (DPS) has highlighted some serious questions on the part of senior legal professionals as to whether the pilot is actually fit for purpose. In this article, we talk about the results from our recent research and cover off what still needs to be done to win the hearts and minds of litigation professionals when it comes to the DPS.

Firstly, let’s recap on what the DPS is. The scheme was introduced in 2018 by the Disclosure Working Group, in response to concerns that the existing framework for document disclosures in legal cases needed a significant overview. The DPS has been active in the Business and Property Courts in England and Wales since January 2019 and was designed to mitigate some of the “excessive costs, scale and complexity” experienced by parties under the previous set of standards for disclosure. The DPS was originally designed to run for two years, up to January 2021. However, in 2020, Professor Rachael Mulheron of Queen Mary University of London published a Third Interim Report, which recommended a 12-month extension to the duration of the pilot. As such, the pilot is presently set to run to the end of this year (2021).

As part of our research into the scheme, we interviewed 250 senior lawyers at UK law firms to better understand the impact of the pilot scheme on the legal sector. The views of the legal profession unfortunately reflected dissatisfaction with the pilot as things stand. So much so in fact, that 70% of respondents judged that the scheme is currently ‘not fit for purpose’, and almost all respondents (97%) expressed dissatisfaction with aspects of the pilot.

Interestingly, our research found that actually bringing more choice into the disclosure process may have created new problems too. 58% of respondents said that opposing parties agreed on which model to use for disclosures less than half the time. Parties having very different ideas as to what should and should not be disclosed early on does not exactly establish an open and conciliatory tone in the litigation process. Indeed, almost three-quarters (74%) of survey respondents agreed with the statement that the DPS had exacerbated the adversarial litigation environment.

Our survey also highlighted aspects of positive change being driven by the pilot too though. In fact, a healthy majority of respondents reported engaging with models that had not been available prior to the pilot. A new approach to disclosures also led to more involvement with technology experts. For instance, 68% of respondents used technology experts from the start of the disclosure process and access to technology helped determine the choice of disclosure model for 85% of respondents.

Whilst it is heartening to see that technology and expert advice is part and parcel of completing disclosure requests quickly and efficiently, there is a danger that rather than making it easier for parties to agree on the right way to deal with relevant documentation, the scheme may instead be placing further barriers between parties in the crucial early stages of disputes. When we shared our research with Dan Wyatt, a partner at RPC, he commented: “The benefits of using technology in disclosure have been obvious for many years. This survey result shows that lawyers acknowledge that, and that technology is playing an influential part in how disclosure is conducted.”

It is worth questioning whether a model-based approach to disclosure is the right one given the inherently adversarial litigation environment. Certainly, a high proportion of respondents to our survey agree that litigation is being made more confrontational, not less, by the creation of an additional decision- making stage concerning model selections.

Another factor that needs to be considered is whether the DPS has had enough time to become a fully integrated part of the disclosure culture within the legal sector. Although the scheme has already been extended once, COVID-19’s effects may have hampered adoption of the scheme’s best practices and principles. The Civil Procedure Rule Committee itself said that the pilot was “intended to effect a culture change”, and it is fair to question whether remote working has prevented the DPS from taking full effect.

In April 2021 we saw changes, that while were not extensive, should improve the overall experience of navigating the DPS process. These included simplifying  the Disclosure Review Document (DRD) and also clarifying points regarding the duty of preservation and the disclosure timings of adverse documents. The DPS was always a ‘living pilot’ with changes expected to be made during its existence, so, what else needs to change?

Well, certainly the objectivity that technology brings to complex cases should be taken into account as the pilot continues to evolve over the next four to five months. Likewise, deliberately guiding parties towards technology from the start of procedures may help execute requests promptly and reduce the overall administrative burden of disclosure processes too. With the pilot now over two years old, it will be interesting to see if a greater volume of comment from Judges filters through, with clear positive reinforcement for those who are conducting themselves in the same spirit that the DPS was designed.

Finally, to combat the exacerbated adversarial litigation environment created through the model selection process, perhaps we will see a simplification of models. Was going from ‘standard disclosure’ or effectively one model, to five different options too much, too soon? Has model E been used at all? Our survey for instance, revealed it was used less than one percent of the time. And if it hasn’t been used, can it be removed, and the other four models condensed? Were the advancements in technology, advancements in how data is processed and understood by AI, going to assist the efficiency and effectiveness of the disclosure process anyway?

The clock is well and truly ticking on this one. With months to go before the DPS currently expires, we truly hope that with further modifications and simplifications of the scheme’s structure and more robust guidance on best practices and enforcement, the DPS will benefit lawyers and their clients long term.

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