The goal of Practice Direction 57AD (PD57AD, previously known as the Disclosure Pilot Scheme) is to modernise the UK’s disclosure practice. This transformation is essential because the traditional, manual, and combative approach to disclosure is unsustainable in the face of today’s massive data volumes and ever-evolving data sources. Manually collecting and reviewing millions of documents one-by-one has become prohibitively expensive, impossibly time consuming, and prone to the risk of both under and over disclosure. When you add in the combative approach between opposing parties, the traditional disclosure process becomes a recipe for skyrocketing legal costs, missed deadlines, and data issues that can derail entire matters. Conversely, a more cooperative approach that leverages AI technology can help improve the process—by allowing attorneys to focus their expertise on critical parts of the matter and refining AI tools to better handle data now and for future, related matters.
Thus, PD57AD focuses on two pivotal elements to modernise disclosure: cooperation and technology. Specifically, PD57AD requires parties to “liaise and cooperate with the legal representatives of the other parties to the proceedings…so as to promote the reliable, efficient, and cost-effective conduct of disclosure, including through the use of technology.”
Similarly, the Disclosure Review Document asks that each party outline how they “intend to use technology assisted review/data analytics to conduct a proportionate review of the data set” and further reminds parties of their duty to cooperate.
Through PD57AD, legal teams’ relationships to each other and with technology is changing in a few crucial ways that present opportunities to work smarter, more cost effectively , and with greater agility.
The duty to cooperate
Judges are increasingly focusing on the language requiring cooperation between parties in PD57AD and will admonish counsel who attempt to use the disclosure process as a tool to punish an opposing party. For instance, in McParland & Partners Ltd v Whitehead, when a dispute arose involving the framing of the issues of disclosure, the judge took the opportunity to broadly remind both parties of the following:
“It is clear that some parties to litigation in all areas of the Business and Property Courts have sought to use the Disclosure Pilot as a stick with which to beat their opponents. Such conduct is entirely unacceptable, and parties can expect to be met with immediately payable adverse costs orders if that is what has happened.”
As data volumes grow and PD57AD becomes more cemented into the fabric of UK’s disclosure practice, there is a growing intolerance for “weaponised” disclosure practices by courts. Certainly, parties can expect that the days of “data dumping” (i.e., the strategy of over collecting and producing documents to bury the opposing party in data) or conversely, winning burden arguments related to the cost and time of manual review, are over.
The duty to leverage technology
Instead of this combative approach, courts will expect that parties come together cooperatively to agree on the use of technology to perform targeted disclosure that is both more cost effective and efficient. Indeed, in a cloud-based world, this symbiotic relationship between technology and legal is the only successful path forward for an effective disclosure process.
Under this modern approach, the technology used to collect, cull, review, and produce data must be leveraged in such a way that results can be verified by opposing counsel and judges. This means that all workflows and processes must be transparent, defensible, and agreed upon by opposing counsel. Even prior to the implementation of the Disclosure Pilot Scheme in 2018, judges had begun to crack down on parties who attempted to “go it alone” by unilaterally leveraging technology to cull or search data in a non-transparent way, without the consent of opposing counsel and/or without implementing industry standard best practices.
For example, in Triumph Controls UK Ltd., the judge explicitly admonished a party for deploying a computer assisted review (CAR) search strategy overseen by “ten paralegals and four associates” rather than a “single, senior lawyer who has mastered the issues in the case” to ensure that the criteria for relevance was consistently applied to effectively teach the CAR technology. He also rebuked the party’s CAR approach because it was not transparent and could not be independently verified. Because these technology best practices were not followed, the judge forced the producing party to go back and cooperatively agree with opposing counsel on an alternative review methodology to sample and re-review a portion of the original dataset.
The future of disclosure for counsel and clients
The modernisation of the disclosure process through cooperation and technology means that it will be increasingly imperative that each party has the requisite legal and technology expertise to meet the requirements of PD57AD. Specifically, each party must have a barrister who understands disclosure law and can guide them through each step of the process in a way that complies with PD57AD. Each party should also have an expert who understands how to implement technology to perform targeted, efficient, and transparent disclosure workflows. As seen from legal decisions emanating around PD57AD, parties without this expertise who attempt to “wing it” will increasingly find themselves facing delayed proceedings, hefty legal costs, and unfavourable judgements by courts.
Law firms or corporations that don’t have the requisite expertise internally must look for an external partner that does. This is where an experienced managed review partner can provide a true advantage to both law firms and their clients. Parties should look for a partner who can provide a team of technology experts and experienced barristers, working in tandem and leveraging the industry’s best technology. This team should be ready to jump in at the outset of every matter to understand the nuances of the client’s data, as well as the underlying legal issues at play, so that each step of the disclosure process is performed transparently, defensibly, and efficiently.
Over time, a managed review team can become a valuable extension of corporate in-house and law firm teams. This partner can use institutional knowledge, gained by working with the same clients across multiple matters, to create customised, strategic, and automated disclosure workflows. These tailored processes, designed directly for a client’s data infrastructure and technology, can save millions and achieve better outcomes. In turn, law firms can refocus their attention on the evidence that actually matters, while assuring their clients that the disclosure process is contributing to lower legal costs and better overall results.
Under the modern approach to disclosure, parties must have someone on their team with the necessary legal and technology expertise to perform the type of targeted, cooperative, and transparent disclosure methodology now required by PD57AD. This partnership between legal and technology is truly the only path forward for a successful disclosure endeavour in the face of today’s more voluminous and complicated datasets.
Parties that do not have this expertise should look for an experienced managed review partner who can provide a consistent team of legal and technology experts who can perform each step of the disclosure process efficiently, transparently, and defensibly.