The E in E-Disclosure

It comes as no secret that the litigation process is one that brings about order during a dispute.  The facts of any case are usually recorded in documents.  Back in the days of paper, there was plenty of disorder, but there is even more now.  You may not have heard of “unstructured data” but the chances are you have just created some. If there was chaos in the paper days, describing the disorder in today’s information society as unstructured is kind in the extreme.

The term “e-disclosure” is used with increasing regularity though it is somewhat misleading. Some have confused the process with the electronic disclosure of documents.  Others understand it to mean the disclosure of electronic documents. Many shy away from anything associated with it on the grounds that anything “e-” is for the technology bods, not for the lawyer.

The Jackson costs review suggested that the proliferation of electronically stored information (ESI) was a reason why litigation costs have increased and that lawyer training is the solution to the problem.  Given that law students receive no specific training in handling ESI at University or during the vocational stage of their education, the skills required in the information society will be acquired in a non-legal environment and on-the-job.

Technology in the Law

Recent UK case law shows there is an emerging standard of care required in properly handling ESI. Further, Practice Direction 31B, which applies to all cases issued after 1 October 2010, requires litigating parties to discuss what technology platforms and solutions might be used to manage the process more efficiently. This would include tools and techniques to eradicate duplicate or near duplicate documents and applications enabling searches for the most relevant material first, as well as to achieve an orderly production to the other side.

Beyond searching and automated volume reduction, the availability of the technology enables outsourcing of parts of the document review itself to a lower cost environment.  A consideration of outsourcing is very likely to become a routine question in all cases in the interests of better costs management.

Technology may have caused the problem with the proliferation of electronic documents but it also holds the key to solving that problem. Understanding what solutions are available should become part of a contentious lawyer’s know-how and skill-set. There is a difference between having a technology solution and knowing how to get the best possible efficiencies out of it during a document review to meet the applicable deadlines and budgets.

Embracing Technology to Combat Risk

Although the technology and methods applied in litigation cases have emerged from the need to disclose documents, effective use of technology should be applied to any legal case where there is a focus on reviewing or analysing electronic evidence.  There is an increasing trend of lawyers using what were traditionally electronic disclosure platforms, in arbitration, tribunal hearings and regulatory investigations.

High risk review areas (where clients may face imprisonment, massive turnover-based fines or criminal conviction) are not only risky for the protagonist. They are also risky for the lawyers personally (who might get the management wrong).  With the predicted increase in instances of commercial fraud, the ramping up of the capabilities of the OFT, FSA, EU Competition Authority, SFO and other regulators and with the introduction of the Bribery Act on 1 July 2011, the number of such high-risk projects is set to increase.  The disciplined management of evidence in these cases will be very much a core skill for a law firm to demonstrate to nervous clients in order to provide both reassurance and to ensure the right advice is available at the earliest possible time. UK Competition law provides benefits if leniency is sought before anyone else.  The new self-referral approach of the SFO in cases of bribery and corruption will mean the timing of the referral will be very important.  In fraud cases, finding the evidence to justify freezing and search orders has always meant moving quickly, and so getting on top of the evidence on day one may become the difference between success and failure.

Private arbitration and regulatory investigations all demand similar ESI project management issues, albeit in different contexts.  There is ample scope for the parties in a private arbitration to provide trial technology and to make the arbitral proceedings digital.  The regulators themselves have too been investing in new search technology and are upgrading their approaches.

The Lawyer: A Project Manager

Lawyers are used to managing their client, counsel, the court, the expert, the witnesses and of course the documents.  Given the vast volumes of ESI in use in commerce and the private affairs of citizens, in any case (be it litigation, arbitration or a regulatory investigation), the documents component is probably more challenging than at any time in the history of justice, purely because of the enormous volumes of material to be considered and managed.

Lawyers are often criticised for not having well-developed project management skills. One project management skill that is already much in demand is costs-estimating.  The recent costs management pilot in the Birmingham Mercantile Court is set to be rolled out in all courts nationwide.  This will doubtlessly lead to the wider practice of estimating costs in advance of the delivery of the services for which the costs will be paid. Another project management skill is the collection and review of the ESI.

The evidence handling side of a case, whilst challenging, is much more predictable and quantifiable as a result of its electronic nature.  Volumes can be instantly measured, review rates can be established and from these estimates can be readily calculated of how long a review will take and how much therefore it will cost. The speed of throughput and the costs burn can be flexed by factoring in additional resources, and a review can be designed and planned to use off-shore, on-shore, on site, or off-site resources or even the client’s own resources in order to manage the cost or time available in which the review has to be completed. The technology readily monitors the progress of a review and statistics and progress reports can be provided to clients.  Performance against budget and anticipated completion times can be monitored giving clients full visibility and transparency.

The deployment of the proper disciplines of project management will not only get the job done efficiently but will mitigate and manage the aforementioned risks. Just as Lord Justice Jackson indicated in his report “Review of Civil Litigation Costs” that education is the answer for lawyers faced with the spiralling costs caused  by the proliferation of ESI, so the teaching of project management skills are a large part of the answer to what that education should comprise.

Conclusion

Lawyers are information workers, happy to work with information and complexity.

E-Disclosure is to a great extent an unhelpful misnomer. What is really encapsulated in the term is the management of ESI.  In the context of client projects, e-disclosure is project management.  Senior Master Whittaker did not shrink from using the term “ESI” in the Goodale¹ judgment, and lawyers should equally look to embrace not only the language but their familiarity with basic IT concepts in the management of their projects.

It is necessary for the IT function and the Legal function to embrace one another’s very different worlds and for deeper understanding of the flow of information with the client’s organisation.  The data of the IT team is the evidence of the lawyer. Same information: different perspective.

One wonders whether both inside and outside counsel are close enough to their client to know how information is stored within the client organisation and how it can be retrieved. That might be an appropriate benchmark of competency in the future. This knowledge will not only help projects to move more quickly but it will reduce legal bills and increase efficiency.

The lawyer who will be in demand in the future will be the one who can structure disorder and manage large volumes of ESI effectively in order to separate the relevant from the irrelevant and to get to the heart of the matter more quickly than his opposite number.

Daniel Kavan is an Electronic Evidence Consultant at Kroll Ontrack's office in London.

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.

¹Goodale v the Minsitry of Justice [2009] EWHC B41 (QB)