Disclosure pilot scheme still unfit for purpose, most lawyers say

Beckett: Pilot creating further barriers

Seven in 10 lawyers consider the disclosure pilot scheme unfit for purpose, with many believing it has exacerbated the adversarial environment, new research has found.

The survey of 250 lawyers found that most found themselves agreeing with the opposing side on which model to use less than half the time, with 14% saying parties were often two models or more apart at the start of a disclosure process.

Virtually all (97%) of those polled by professional services firm Alvarez & Marsal said they were frustrated with aspects of the pilot, while 70% declared it unfit for purpose.

The report suggested that, despite “broadening lawyers’ horizons” when it came to different models, the increased choice enabled by the pilot may have created new difficulties in what was already an adversarial situation – three-quarters said agreed that it had made the litigation more contested.

The main causes of frustration were the subjective nature of selecting models, the extra time the process took, and whether it actually improved access to justice.

Almost a third (32%) of respondents said they used model D (the closest equivalent to the ‘old’ process) most often, indicating how most had changed their approach to disclosure since the pilot’s launch – with model C (request-led search-based disclosure) the most-used option for 46%.

At the same time, the pilot seemed to have achieved its goal of deepening the use of technology in the disclosure process, with every single respondent saying they engaged with technology, and technology experts, during the process.

Most respondents (85%) said access to technology was a determining factor when parties decide on their disclosure model, with 77% believing that more effective use of technology could contribute to transforming the scheme for the better.

Alvarez & Marsal quoted Ben Sigler, a partner at City firm Stephenson Harwood, saying: “Unfortunately, in my experience, the pilot has significantly driven up the costs of disclosure, thereby exacerbating the main problem which it purported to address.

“What is most regrettable is that, in my view, none of the changes which it introduced were even necessary, as: (1) CPR 31 already provided scope for the court to actively manage the scope of disclosure (rather than simply to order standard disclosure); and (2) technology assisted review already provided an effective solution to delivering disclosure at proportionate cost in cases involving substantial volumes of potentially disclosable data.”

Hugo Plowman, a partner at Mishcon de Reya, said it was nonetheless “reasonably certain” that the pilot was “here to stay” despite the teething problems.

“There is a concern about front-loading of costs and creating new room for argument about the form and content of the disclosure review document. Recently introduced changes are likely to assist in resolving some of this, but more is needed.”

Phil Beckett, managing director and head of disputes and investigations at Alvarez & Marsal in Europe and the Middle East, said the pilot has “unquestionably” got people thinking about e-disclosure more thoroughly and earlier in the process; and created more options for lawyers and other court users.

But there was 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”.

He added: “With months to go before the pilot currently expires [at the end of 2021], and with yet more changes just recently come into play, we truly hope that with further modifications and simplifications of the scheme’s structure and more robust guidance on best practices and enforcement, the pilot will benefit lawyers and their clients long term.”

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