EU Litigation and the advantages of Electronic Disclosure
Susan Knox, Kroll Ontrack
Electronic Disclosure: Handling Employees’ Electronic Documents in the EU
As corporate communications increasingly involve e-mail and other electronic documents, electronic disclosure in disputes is likewise taking place more frequently. Depending on the jurisdiction and the particular matter, the disclosure of electronic materials may in fact be mandatory. Even where it is not required, litigation teams are increasingly taking advantage of the latest search and review technologies to prepare the case using electronic materials as they provide useful insights into the details of the matter at hand.
Materials in any given matter are likely to be sourced from individuals’ desktop and laptop PCs, as well as work e-mail accounts. These sources, despite corporate rules and policies, are likely to contain irrelevant personal data, including banking and health information, communications with friends, personal photographs and music files. When collecting electronic evidence it is essential, therefore, that companies and their lawyers observe applicable privacy and data protection laws, while also heeding court orders and considering the company’s legal needs.
Lawyers must, first and foremost, be aware of the laws and rules concerning disclosure in the individual case.
Disclosure, Data Protection and Privacy
These may include court rules of general application, such as the Civil Procedure Rule 31 and its associated Practice Direction in England. There may also be specific rules and instructions for all cases before the particular court or arbitral tribunal or other body, as well as directions specific to the particular matter. Lawyers should take an active and informed role in determining this latter set of rules, bearing in mind their needs for the case and the other laws, rules and procedures with which they must comply.
Disclosure rules and orders, and the obligations that they create for all parties, must be taken seriously. Although electronic disclosure is a relatively new phenomenon in Europe, its importance is growing as relevant documents are increasingly likely to take electronic form. Lawyers and their clients must understand their obligations as well as the challenges those obligations, and electronic data, can pose: through computer forensics and forensically sound imaging of all of a company’s media may be required, and an expansive view of what constitutes data may be needed. A disclosure order may cover, or potentially cover, not only documents on servers or employees’ hard drives, but also material on employees’ portable hard drives, USB drives, DVD/CDs, PDAs, mobile phones and so on – and it may be to a party’s advantage to push for the production of such materials where an opponent is thought to have useful material in such forms.
Companies and their lawyers must know and comply with all applicable privacy and data protection laws. In Europe, these may derive from EU law, as well as each country’s unique national laws. On the EU level, Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, concerning data protection, is key; it has been implemented at the national level in Member States. On the national level, additional, more stringent data protection rules may apply, as can various privacy and employment laws. In France, for example, trade unions and representatives are likely to be involved in the physical data collection to ensure the employee’s rights are not violated.
Privacy and data protection laws may affect where data may be processed and whether, how, and to where they may be transferred. These laws may also prescribe procedures for notifying employees or clients that their data are being handled, as well as instructing for the provision of written procedures which will offer concerned employees the ability to learn more about the processing or obtain redress. Technological solutions, such as keyword culling of documents before they are loaded into a document repository for online review and the automatic generation of reports concerning the types and locations of files involved in an electronic disclosure exercise, can help companies to satisfy these requirements.
Lawyers should expect their external experts to be able to work with them and their corporate clients in ensuring compliance with applicable rules, and to provide advice regarding the technology-related contents of employee notifications. Furthermore, the use of experts in the preliminary stages will likely assist in the later stages of a case when electronic evidence needs collecting, reviewing or producing in line with any relevant laws and with the client’s case specific needs in mind. In addition, experts should also be able to support any claims in court. This can range from confirming the appropriate methods through which evidence was collected, searched, reviewed and produced in line with such laws, to forensically clarifying the what, when, where and how of computer-related activity.
Considerations of employee well-being extend well beyond legal obligations, of course. Technical experts should be able to assist in this respect not only by providing explanations of the processes involved but also via its handling of on-site data collection to minimise the impact on staff. Computer forensic experts should also be able to provide evidence of these policies and procedures in court if required, to demonstrate compliance with relevant EU or national laws.
Managing Expectations
Ideally, in-house legal teams and their external lawyers should manage the expectations of all of the company’s employees well in advance of litigation. Clear language in each employee’s employment contract should warn that an employee’s work computer, its electronic contents and messages sent from it, are company property and may be reviewed or disclosed (in accordance with applicable laws) in connection with legal matters. Moreover, as a matter of policy, companies should take a firm, clear position with respect to the handling of personal information and the transmission and downloading of jokes, personal photographs and messages as well as potentially offensive material.
Employees should be instructed to organise (and, where appropriate, categorise and index) documents in a way that allows others quickly and easily to isolate documents that relate to a particular matter or issue. This will not prevent employees from deliberately concealing or obscuring the nature of a document – in which case sophisticated review tools may be particularly helpful – but it may provide considerable time and cost savings in less extreme cases. The creation of solid indexing and useful metadata may not only have day-to-day benefits to the organisation but may also be a valuable tool when a dispute arises. Should the latter arise, corporations will find the task of evidence collection easier and less time consuming for both internal and external resources.
There is, of course, a wide variety of EU and national laws lawyers must be aware of and comply to when faced with an electronic disclosure exercise. By introducing policies and experts prior to or at the onset of litigation, lawyers are helping themselves as well as their clients ease the burden of managing electronic evidence. In an environment where competitive advantage is crucial, this is just one way of improving the service to an increasingly demanding client base.
Sue Knox is a Legal Consultant at Kroll Ontrack's London office.
Disclaimer
This document is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for research and information on the subject of legal technology. While every attempt has been made to ensure accuracy of this information, no responsibility can be accepted for errors or omissions. Recipients of information or services provided by Kroll Ontrack shall maintain full, professional, and direct responsibility to their clients for any information or services rendered by Kroll Ontrack.
Copyright 2007 Kroll Ontrack, Inc & Kroll Ontrack Legal Technologies Ltd.
