The Disclosure Pilot Scheme (DPS) has been the subject of much contention since its introduction in the UK in 2019. Created to make disclosure more proportionate and tailored to the nuances of each case, it’s been one of the many responses to the increasingly data-driven world we live in and the possibilities to reduce the time and costs associated with gathering documentary evidence technology now enables.
With a predicted 74 zettabytes (one zettabyte being the equivalent of 250 billion DVDs) of data being created in this year alone, to analyse all data related to a case is no longer a realistic standard. Yet the latest scheme – now extended to 2022 – is still often met with the same enthusiasm as doing your tax returns.
While many firms may approach the DPS as an onerous task, it has many powerful advantages. One that you may not immediately think of is setting yourself apart from competitors as an AI-enabled firm – and fundamentally – being able to prove it.
Accelerating technology adoption for review
Much has changed since the introduction of the Electronic Document Questionnaire. When it comes to electronically stored information, it’s no longer just emails or texts we need to consider. WhatsApp, Microsoft Teams, and Slack (to name a few) are all now mediums for business interaction, and the sheer volume of data produced has continued to rise.
The DPS is aimed at helping firms adapt to this influx of data by encouraging them to harness the benefits of AI or technology-assisted review (TAR) to make reviews more efficient. More than 50,000 documents in your matter? Under the DPS, it’s now a requirement to use AI or TAR, or, if you choose not to, you need to explain why. In requiring lawyers to consider AI and TAR in their approach to disclosure, the DPS also aims to mitigate the knock-on impact of mounting data levels, such as high costs and cases collapsing due to slow reviews or even a lack of parameters to constitute what a reasonable review is.
For some time-poor lawyers, it’s been a source of frustration, having to get to grips with a new way of working and the new Disclosure Review Document (DRD). As with any pilot, it’s been an iterative learning process not without its share of criticism. Some litigators feel that it still involves too much upfront work for smaller value commercial cases, while others have expressed concern that it adds too much complexity in the case of multi-party claims. Moving away from a “standard” approach to disclosure, litigators now need to spend time carefully considering what is appropriate in any given case.
While the objectives of this pilot are clearly a route to positive change, it’s often tricky to get excited when that means having to spend time learning new processes when you already have a jam-packed schedule.
However, there is a less obvious benefit that comes from the change – the ability to prove that you are actually using the best technology for your clients.
The proof of the pudding is in the DRD
The DRD includes the question “How are you going to bring technology to bear in this case?” This question alone can separate the wheat from the chaff not only in your litigation, but also in demonstrating the overall value law firms are bringing to their clients via legal technology.
Law firms showcase that they have the best “tools and team available” to support their clients’ cases all the time, changing the tools and team members highlighted based on the pitch. But in light of the DPS, firms need to get their clients to understand how vital it is that their lawyers are using the best technology available to ensure speed and efficiency in review. With this in mind, of course every firm will claim to use cutting-edge technology.
The truth is most firms use some form of AI for tasks from legal research to prioritising documents for review. But the DRD questionnaire mentioned above helps to reveal whether you mean that you employ a sophisticated AI solution designed for the task in question, or you mean that you use autocorrect.
The DRD and DPS process mean that a firm can prove that it isn’t “AI-washing” by using the term for its own sake rather than to describe any tangible added value to the client. Being able to outline how you use a sophisticated AI-powered edisclosure solution gives you the chance to demonstrate how you are taking your clients’ needs seriously.
It can also help firms gain a competitive edge. Newfound transparency can help clients accurately identify which firms are really invested in using technology to support efficiencies in a case, leading to a differentiator firms can capitalise on in an increasingly competitive market. Firms are also generating data on their workflows, processes, and timetables that help them analyse how cases are staffed and how much certain phases of litigation cost per task, all leading to stronger forecasting and more competitive pricing models that create healthy financials for the firm and demonstrated value for the client.
While there is still a long way to go before the end of the pilot (and there remains a lot to learn), it’s important to remember even with the added work and pressure the pilot imposes on lawyers and law firms, there’s also a lot to gain.
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