Legal systems around the world come in all shapes and sizes, but few can escape the global increase in the volume and sources of electronic data and the impact it has on eDiscovery.
In the United Kingdom, increasing concerns about the scale and complexity of disclosures—especially when it comes to complex commercial litigation—have given rise to a desire for a complete overhaul of traditional disclosure procedure. These concerns led to the invention and implementation of a brand-new system for making disclosures: the Disclosure Pilot Scheme (DPS).
Now that the Disclosure Pilot Scheme is here to stay, at least in certain Business and Property Courts in the United Kingdom, litigants and their legal teams are left wondering what impact the DPS will have on them. We’ll answer that very question in this post. We’ll also be discussing what the Disclosure Pilot Scheme is, the origins and purpose of the DPS, and how technology can aid in the disclosure process in light of the DPS’s new approach.
What is the Disclosure Pilot Scheme (DPS)?
The Disclosure Pilot Scheme (DPS) is a new set of rules governing the disclosure process in the United Kingdom’s Business and Property Courts.
Disclosure is the act of exchanging documents between parties during a legal proceeding. Ideally, disclosure should be limited to documents that are relevant to the issues being disputed in the case. Often, however, disclosure includes irrelevant documents, costing litigants more time and money than necessary.
In the United Kingdom, Part 31 of the Civil Procedure Rules (CPR) governs the disclosure and inspection of documents in civil cases.
As of January 1, 2019, the DPS—implemented as Practice Direction 51U in the CPR—temporarily replaced the previous disclosure rules. The DPS applies in the Business and Property Courts in Birmingham, Bristol, Cardiff, Leeds, Liverpool, Manchester, and Newcastle. The DPS does not apply in the County, Intellectual Property and Enterprise, or Admiralty Courts. Nor does the DPS apply to competition, public procurement, fixed costs regime, capped costs regime, or Shorter and Flexible Trials Scheme cases.
The DPS was initially set to run as a pilot program for two years. That period was extended to four years because the COVID-19 pandemic prevented comprehensive oversight and reporting of the pilot program. As of October 1, 2022, the DPS has become a permanent fixture in the United Kingdom’s Business and Property Courts.
Let’s take a moment to review where the DPS came from came from.
What is the origin of the Disclosure Pilot Scheme?
The DPS was formulated to address the legal community’s concerns about the high cost, volume, and complexity of disclosure. In 2016, the Chancellor of the High Court created the Disclosure Working Group (DWG) to identify problems and craft practical solutions that could be tested and eventually implemented in multiple jurisdictions. Ultimately, the DWG created the DPS to update and improve the disclosure process outlined in Part 31 of the CPR as it applies to Business and Property Court cases.
These changes were in response to a long overdue need for an overhaul of the United Kingdom’s standard disclosure process. Given the modern technological landscape and increasing complexity of eDiscovery, the old process was largely outdated. Disclosure was also unnecessarily expensive in many cases, took an excessive amount of time to complete, and set overbroad expectations for litigants.
Now that we’ve covered what the DPS is and where it came from, let’s discuss the purpose of the DPS.
What is the purpose of the Disclosure Pilot Scheme?
The purpose of the Disclosure Pilot Scheme is to
- simplify the disclosure process,
- reduce irrelevant disclosures by allowing for more flexible disclosure requirements,
- improve efficiency,
- increase cooperation between the parties, and
- save litigants time and money.
As Sir Geoffrey Vos, the Chancellor of the High Court, explained in UTB v. Sheffield:
The introduction of the Pilot was intended to effect a culture change. The Pilot is not simply a rewrite of CPR Part 31. It operates along different lines driven by reasonableness and proportionality . . . with disclosure being directed specifically to defined issues arising in the proceedings.
At its heart, the Disclosure Pilot Scheme seeks to address the large volume of electronically stored information (ESI) that frequently accompanies legal matters, especially complex commercial litigation matters, and reduce the scope of required disclosures. This means that the DPS will have the greatest impact on parties with business and property law cases and their legal teams, for better or worse.
The future implications of PD 57AD for Business and Property Court litigants
The Disclosure Pilot Scheme became a permanent fixture in the Business and Property Courts with the addition of Practice Direction 57AD (PD 57AD) to the CPR. PD 57AD includes a few small amendments to the original DPS, but its overall provisions are the same.
PD 57AD introduces the following changes for litigants:
- Clarifying parties’ preservation duties through actionable steps each party must take to issue legal hold notices to custodians.
- Emphasizing early and accurate identification of potentially relevant data sources.
- Reducing the cost of eDiscovery by requiring early cooperation between the parties.
- Requiring parties to discuss disclosure issues and methods and develop a “Disclosure Review Document” outlining each issue before the first case management conference.
- Alleviating the burden on the courts by allowing them to rely on the parties’ reports to determine the scope of disclosures called for in a given case.
- Forcing litigants to grapple with new and unfamiliar stages of the disclosure process.
- Requiring initial disclosures to be made in electronic form and generally limiting them to 200 documents or 1,000 pages.
- Offering five different extended disclosure models for parties to apply to various issues as they see fit and removing standard search-based disclosure as the default.
- Requiring disclosure of “known adverse documents,” which are documents that contradict the disclosing party’s stance on a disputed issue, regardless of the chosen disclosure model.
- Allowing litigants to seek guidance from the court via “Disclosure Guidance Hearings” instead of lengthy correspondence and applications.
- Requiring parties to either use technology to perform document review and disclosure or, if a party chooses not to do so and has over 50,000 documents to review, explain to the court why they are not using technology to assist them with their review process.
Whether these new requirements will yield positive results for legal teams remains to be seen. However, PD 57AD’s emphasis on technology is a realistic approach that is certain to have a positive impact on DPS workflows for legal teams who are new to using eDiscovery tools.
Let’s take a closer look at how the right kind of technology can improve your legal team’s DPS workflow.
How technology can aid Disclosure Pilot Scheme workflows
Using technology to optimize your legal team’s disclosure process can be a game-changer, especially when you are dealing with large volumes of electronic data stored across various sources. eDiscovery platforms can alleviate the burden that disclosure places on legal teams by assisting your team with in-place data preservation, accurate data collection, efficient document review, and more.
ZyLAB’s Legal Hold software, for example, automates the legal hold process by allowing users to issue legal hold notices to custodians and manage, track, and lift those holds all from one central hub. This ensures greater data preservation while saving users time and effort on legal holds.
Then there are comprehensive eDiscovery platforms like ZyLAB ONE, which encompasses everything from legal holds and in-place data preservation to Live Early Data Assessment, collection, and review. ZyLAB ONE allows users to search, review, and analyze data in-place. And because it yields more accurate results than manual processes, it helps users avoid over-collection and disclosure of irrelevant documents. This makes for a more simple, efficient, and cost-effective eDiscovery process.
The ZyLAB ONE and Legal Hold platforms demonstrate how technology can assist with data preservation, early and accurate identification of relevant data sources, and efficient document review. For these reasons, both tools are particularly helpful for legal teams that are subject to the DPS’s preservation, early conferral, and use of technology requirements.
Technology can help your legal team execute efficient and accurate disclosure
Although the Disclosure Pilot Scheme was formulated to respond to the increasing volume of electronic data and the complexity of the disclosure process, it is not a magic wand that suddenly makes the disclosure process easy. In fact, the DPS encourages parties to cooperate with one another and use technology to assist with review because it is such a difficult process, and technology can provide greater accuracy at a lower cost.
Of course, it’s still up to you to decide which technology you should invest in. By choosing the right eDiscovery tools, your legal team can complete the disclosure process as efficiently and accurately as possible.
To learn more about ZyLAB’s eDiscovery solutions, reach out today to schedule a demonstration.