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Disclosure discontent; why legal professionals say the disclosure pilot scheme is not fit for purpose

Ezra Bailey

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. This scheme was introduced in 2018 by the Disclosure Working Group. The DPS has been active in the Business and Property Courts in England and Wales since January 2019.

Interestingly, their 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. Almost three-quarters (74%) of survey respondents agreed with the statement that the DPS had exacerbated the adversarial litigation environment.

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. When they shared their research with Dan Wyatt, a partner at RPC, he commented that 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. 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.

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 they saw changes, that while was 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.

Their survey for instance, revealed it was used less than one percent of the time. The clock is well and truly ticking on this one. With months to go before the DPS currently expires, they 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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