Disclosure Pilot Scheme: The Inside View (part 2)

You may have already read part 1 of our Disclosure Pilot Scheme (DPS) paper – if you haven’t though just take a look here.

In this second article (part 2), we talk about the importance of technology and expert advice when it comes to DPS. Read on to find out more..

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.

Dan Wyatt Partner, RPC

The importance of technology in DPS

The opportunity to deepen the use of technology through the disclosure process was one of the factors cited by the DWG in the pilot scheme’s early stages. This appears to be bearing fruit: strikingly, every one of our respondents engages with technology, and technology experts, at some point in a disclosure process.

It is imperative that our disclosure system is, and is seen to be, highly efficient and flexible, reflecting developments in technology.

The choice of models that the DPS offers may help to strengthen the relationship between technology and disclosure. 85% of our respondents see access to technology as a determining factor when parties decide on their disclosure model. Overall, technology stood out as one of the most important factors affecting the decision on which model to use, proving more popular than other factors including turnaround time, the approach of the ‘opposition’, and the size of the case.

Respondents also highlighted the opportunity for technology to continue to drive improvements in the DPS itself. 77% of respondents agreed that more effective technology could contribute to transforming the scheme for the better, with fewer than one in 10 respondents disagreeing.

The importance of experts to disclosures was highlighted by our respondents, more than half of whom saw the availability of expert advice as a key factor in model selection. 68% of respondents said that they used experts from the start of a disclosure request, with expert contributions delivering benefits such as more decisiveness over the right model to use and better speed of delivery.

Technology promises to drive continued benefits for parties on both sides of the disclosure process, helping to reduce costs and get results more quickly. Furthermore, lawyers recognise that expert advice is necessary in getting the most out of technologies – both when using existing products more efficiently, and when it comes to exploring new and developing technological discovery and analysis solutions.

As the role of technology has become more central to disclosure exercises, law firms are acknowledging that experts are needed early in the process to help accelerate work and serve clients better. It is important that experts are fully integrated into the team as trusted advisors and are not just used to address ad hoc technical challenges, but to add value right the way through the disclosure process.

Richard East, Partner, Quinn Emanuel Urquhart & Sullivan

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Fit for purpose

The DPS was set up as a ‘living pilot’, and questions over certain parts of the scheme were inevitable and expected. However, our survey reveals widespread dissatisfaction with the purpose of the scheme. 97% of respondents expressed frustration with aspects of the pilot scheme. 70% judge that the scheme is not fit for purpose.

It seems to be reasonably certain that the DPS is here to stay despite the known teething problems that practitioners have experienced to date. There is a concern about front-loading of costs and creating new room for argument about the form and content of the DRD. Recently introduced changes are likely to assist in resolving some of this, but more is needed.

Hugo Plowman, Partner, Mishcon de Reya

Conclusions

Although the DPS has helped open up more choice for parties dealing with disclosure requests, our 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 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.

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. The objectivity that technology brings to complex cases should be taken into account as the pilot continues to evolve. Deliberately guiding parties towards technology from the start of procedures may help execute requests promptly and reduce the overall administrative burden of disclosure processes, for instance.

With months to go before the DPS expires and a decision is made on long-term disclosure best practices, we hope this report helps to clarify aspects of the ongoing debate around the Disclosure Pilot Scheme.

Find out more here in the full paper: https://www.alvarezandmarsal.com/insights/disclosure-pilot-scheme-inside-view