Alvarez & Marsal survey unveils discontent with Disclosure Pilot Scheme

In litigation, data matters more than ever, but the way disclosure is now being handled is causing some concern within the legal sector. New research from Alvarez & Marsal highlights serious questions on the part of senior legal professionals as to whether the pilot is fit for purpose. 

In litigation, the breadth and depth of documents disclosed to counterparties has a material impact on cases. Disclosures in the Business and Property Courts previously operated under a single, one-size-fits-all model. This did not necessarily result in time- and cost-efficient processes. To remedy this situation, the Disclosure Working Group launched a pilot in 2019 that introduced a “menu of options” to choose from when deciding on the breadth of disclosure required in different cases. 

With the scheme having been live for more than two years, Alvarez & Marsal interviewed 250 senior lawyers at UK law firms in early 2021 to better understand the impact of the pilot scheme on the legal sector. 

The views of the legal profession reflect dissatisfaction with the pilot as things stand. 70% of respondents judged that the scheme is not fit for purpose, with almost all respondents (97%) expressing dissatisfaction with aspects of the pilot. 

Meanwhile, bringing more choice into the disclosure process may have created new problems. 58% of respondents said that opposing parties agreed on which model to use for disclosures less than half the time. Parties having very different ideas as to what should and should not be disclosed early on does not exactly establish an open and conciliatory tone in the litigation process. 

Indeed, almost three-quarters (74%) of survey respondents agreed with the statement that the Disclosure Pilot Scheme had exacerbated the adversarial litigation environment.

The bright side

Alvarez & Marsal’s survey also highlighted aspects of positive change being driven by the pilot. A healthy majority of respondents reported engaging with models that had not been available prior to the pilot. A new approach to disclosures also led to more involvement with technology experts: 68% of respondents used technology experts from the start of the disclosure process. Access to technology helped determine the choice of disclosure model for 85% of respondents. 

Assessing the results of the research, Phil Beckett, Managing Director and Head of Disputes & Investigations for Europe and the Middle East at Alvarez & Marsal, said: “It is heartening to see that technology and expert advice is part and parcel of completing disclosure requests quickly and efficiently. All the same, there is 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.” 

Dan Wyatt, a partner at RPC, also commented on the findings, stating: “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.”