The Disclosure Pilot Scheme Is Here to Stay: What That Means for Your Practice
On July 15, 2022, the mandatory Disclosure Pilot Scheme (PD51U) was officially approved and will operate on a permanent basis within the Business and Property Courts (BP&C) of England and Wales. Originally implemented in 2019 on a temporary pilot basis, it was extended twice and had been set to expire in December of 2022. Its approval means that on October 1, 2022, the pilot will end, and the scheme will officially be known as Practice Direction (PD) 57AD “Disclosure in the Business and Property Courts.”
This approval is no surprise to those familiar with the modern disclosure process in the UK. PD51U was originally implemented to address the key issues associated with standard disclosure under Civil Procedure Rule (CPR) 31, such as unwieldly costs and the insurmountable scale of disclosure due to ever-growing corporate data volumes. As per UTB LLC v Sheffield United, the pilot was meant to effect a “culture change” in the reasonableness and proportionality of disclosure requests by streamlining the process in a variety of ways. One of the most notable is through the encouragement of leveraging technology (such as technology assisted review or TAR) and data analytics for document review—even going so far as to mandate the use of TAR in cases where the document count exceeds 50,000.
Over the last two years, this push toward implementing more technology to streamline the disclosure process has proven to be a wise one. With a worldwide shift to cloud-based infrastructures and remote working, corporate data volumes have exploded and will only continue to grow. Therefore, the traditional means of disclosure review, wherein a team of reviewers looks at each electronic document one-by-one, is quickly becoming untenable. Utilising technology to streamline review is more imperative than ever and will only grow in importance as data volumes continue to balloon.
What 57AD does not mean, however, is that solicitors faced with disclosure need to be data science or technology experts. It simply means that it will become increasingly important for solicitors who are not comfortable with disclosure technology to find a solid managed review partner that can help streamline the disclosure process with technology and meet Practice Direction 57AD requirements. Below are key attributes to look for when seeking such a partner.
Look for a managed review partner with expertise on the Disclosure Review Document (DRD)
The DRD is meant to facilitate an agreement between parties about what constitutes proportional disclosure, and how to achieve that goal in a cost-effective manner. To do so, it requires parties to identify the key issues of the case and then detail the method of disclosure for each issue, with five methods from which to choose. Each method can have severe impacts on the cost of a matter, as well as the overall outcome of the case for clients.
It is vital that someone with in-depth disclosure expertise is involved in the negotiation and completion of this document. Some managed review vendors may be able to provide staffing and project management when it comes to disclosure document review but will not have experts available and capable to provide advice on effective disclosure strategy, including DRD assistance. Without this expertise, a party may find itself agreeing to disclosure methods that significantly balloon budgets or even worse, result in harmful outcomes for clients.
Look for a managed review partner who has developed strong defensible workflows
One of the hallmarks of and impetuses for PD 51U (soon to be PD 57AD) was to streamline the disclosure process in the face of ever-growing and unprecedented data volumes. Understanding when and how to leverage technology to cull and prioritise data for review, as well as how to leverage TAR, is imperative. However, the technology and workflows can seem overwhelming, especially to those who don’t perform disclosure often.
Thus, it is essential to find a managed review partner who has access to the best review technology and knows how to leverage that technology to achieve the best results in every type of matter. It is also important that that managed review partner has developed strong defensible workflows for data reduction that can be customised to meet the individual needs of each client.
Look for a managed review partner who thinks outside of the traditional linear review approach
While it may seem simpler to fall back on traditional approaches to the disclosure document review process (i.e., hiring many reviewers to read and categorize each document), it is important to remember that PD 57AD was enacted because that approach is quickly becoming too burdensome for parties. The traditional approach also opens parties up to risk, when reviewers cannot effectively review the volume of documents within the time frames required for disclosure. Today’s larger data volumes and more complicated data increase the risk that human reviewers will miss important documents that were required to be disclosed, or conversely, that they will disclose harmful or sensitive documents that should not have been disclosed.
Forward-thinking managed review partners have anticipated this change and have invested in technology and human expertise that can defensibly minimise document volumes so that a discrete number of subject matter experts can look at prioritised categories of pertinent documents, maximizing the value of human review. In this way, a managed reviewer partner can help solicitors move away from an outdated approach to review, while streamlining the disclosure process, keeping litigation budgets in check, minimising risk, and achieving better outcomes.
Look for a partner who will help prepare bespoke briefing documentation, right from the outset
When a matter needs to scale up quickly and on short notice, the painstaking process of adding new reviewers can explode budgets—not only because of the additional overhead, but also because of the churn and inefficiency created by inconsistent work product from inexperienced, new reviewers.
A good managed review partner will prepare for and minimise this churn from the outset, by creating customised briefing documentation that enables new reviewers to roll onto matters seamlessly, without a heavy lift from the client or review manager. Documentation like term glossaries for niche cases (for example, medical inquiries) that are kept in a central repository will help case teams quickly scale up and onboard new reviewers at short notice, while minimizing the churn and risk often thought of as inevitable when adding new reviewers.
Look for a partner who has developed ways to ensure quality work from review teams
Inconsistent or incorrect decisions from review teams creates additional work, which can decimate budgets. Even when data volumes are culled to more manageable levels, inaccurate review work product can still open clients up to risk, especially when sensitive data is involved.
Look for managed review partners who have systems in place to ensure the accuracy of the review team from the outset. For example, some managed review providers will rigorously “test” the work product of review teams, directly after training has finished. This testing process can ensure that each reviewer assigned to the team understands the subject matter and review process, and that from the start of the matter their work product aligns with the case team’s direction.
This type of quality control, started at the reviewer selection process, can greatly reduce risk while keeping budgets under control.
Look for a managed review partner who ensures value for money in terms of candidates
In a traditional approach, first pass review for relevance, privilege, and issues are undertaken by UK-based paralegals, with proven experience in reviewing and redacting documents together with a law degree, LPC/GDL, or NALP certification. However, these reviewers can be expensive, and billed at exorbitant hourly rates.
Forward-thinking managed review partners often have partnerships with reviewers who have been admitted to Bars outside of the UK, providing an added layer of experience offered at a reduced cost. This complies with the overall message of PD 57AD, in that it offers a reliable basis for costs which promotes the cost-effective and efficient conduct of disclosure.
 Model A – No order for disclosure; Model B – Limited disclosure; Model C – Request-led, search-based disclosure; Model D – Narrow search-based disclosure (with or without narrative documents); Model E – Wide search-based disclosure