In litigation, data matters more than ever, but the way disclosure is now being handled is causing some concern within the legal sector. New research from Alvarez and Marsal (A&M) highlights serious questions on the part of senior legal professionals as to whether the pilot is fit for purpose.
Firstly, a recap on the Disclosure Pilot Scheme
The Disclosure Pilot Scheme (DPS) 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. The pilot was designed to mitigate some of the “excessive costs, scale and complexity”1 experienced by parties under the previous set of standards for disclosure.
The pilot has introduced new processes and choices for legal practitioners, and other relevant stakeholders, in an effort to make the disclosure process more “proportionate and efficient,” in the words of the Disclosure Working Group (DWG).
The DPS was originally designed to run for two years, up to January 2021. In 2020, Professor Rachael Mulheron of Queen Mary University of London published a Third Interim Report,2 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 2021.
Perceptions of the pilot scheme as it stands
With the scheme having been live for more than two years, A&M interviewed 250 senior lawyers at UK law firms in early 2021 to better understand the impact of the pilot scheme on the legal sector.
The views of the legal profession reflect dissatisfaction with the pilot as things stand. 70% of respondents judged that the scheme is not fit for purpose, with almost all respondents (97%) expressing dissatisfaction with aspects of the pilot.
Meanwhile, bringing more choice into the disclosure process may have created new problems. 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.
The importance of technology in disclosure
A&M’s survey also highlighted aspects of positive change being driven by the pilot. 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: 68% of respondents used technology experts from the start of the disclosure process. Access to technology helped determine the choice of disclosure model for 85% of respondents.
Assessing the results of A&M’s research, Phil Beckett, Managing Director and Head of Disputes & Investigations for Europe and the Middle East, says: “It is heartening to see that technology and expert advice is part and parcel of completing disclosure requests quickly and efficiently. All the same, 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.”
Dan Wyatt, a partner at RPC, also commented on A&M’s findings, stating: “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.”
Although the DPS has helped open up more choice for parties dealing with disclosure requests, Alvarez & Marsal’s survey of senior lawyers with experience using the scheme has highlighted inadequacies and frustrations.
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 agreed 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.
Regardless of this, a majority of respondents stated that as things stand, the DPS is not fit for purpose. The clock is ticking to resolve these issues, and something needs to change.