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The prevalence of electronic documents means those involved in the disclosure process need to employ the latest technological techniques, says Phil Beckett
The processes demanded by e-disclosure regulations - including the need to identify, capture, restore, manipulate and search electronic documents - are playing an increasingly important role in civil litigation and regulatory inquiries.
As such, the careful management of these documents, whether as part of the disclosure process or to make informed strategic decisions, is more important than ever. In addition to this, technological advances can greatly assist those faced with disclosure-related requirements.
Companies should remember that this issue is something that can affect any type of business of any size and in any industry. The widespread use of IT in businesses has changed the way documents are created, communicated and stored. Handwritten letters, for example, in many cases have been replaced completely, and there is an increase in the volume and granularity of data that is stored across many complex business management systems and databases, as well as mobile devices.
When facing litigation proceedings, businesses have long been required to produce a list of all relevant documents as part of the legal process. In addition, as the regulators become more aware of, and interested in, electronic documents, they are requesting them more frequently. In this technological age, disclosure requests can be challenging. Sometimes, with such a large number of information sources to search, the process can seem overwhelming.
With large quantities of data to consider, documents need to be examined at an early stage. The intelligence contained in them could be invaluable. Because of this, a new approach is required that can offer high levels of precision and accuracy as well as improve the speed and lower the cost of these exercises. Getting access to key documents remains a critical goal.
The starting point has to be the assessment of the business methodology and IT infrastructure of the party involved in the matter, not only as it is now but also how it was at the time of the matter in question. Not only should standard systems be considered, such as emails, network storage and computers, but the process should also encompass management systems and mobile devices including BlackBerry, iPhone and iPad devices.
Additionally, it is important to understand the business processes in play at the time so that you can determine how computer systems were really used as opposed to how they should have been used. Proportionate, reasoned and documented decisions should then be taken as to what systems should be captured, processed, analysed and eventually reviewed. It is better to identify systems and then logically discount them than not include them at all.
IT can help
Using the latest technology can help reduce the volume of documents that need to be reviewed, speed up the review process and make it more efficient and effective.
Technologies including linguistic and relationship analysis are available that go far beyond simple keywords or even complex Boolean searches. They have the ability not only to remove documents that would previously need to have been reviewed in a defensible manner, but also to help critical documents be identified in a more expedient manner. If adopted, they can empower the legal team by allowing it to access and consider the most relevant documents in an efficient and intuitive manner.
A further benefit of advances in technology is that systems have become much more portable without dramatic performance deterioration. This means they can be implemented easily and quickly anywhere in the world, including on the organisation’s own premises.
The latest technology will provide benefits when it comes to e-disclosure, but that does not mean it can always replace sound judgement. It is a bad idea for a company to simply rely on software. It is essential that a thorough and defensible sampling process is conducted to ensure both the accuracy of the review and that of any filtering or searching criteria used.
Regardless of the scope of the exercise, the concept of proportionality is at the heart of the e-disclosure process. The amount and content of any searches carried out must be proportionate to the case. Of course, this is not always easy, as the question of proportionality can be subjective. In the end the legal team will need to make a judgement call and come to a reasoned decision for actions that can be explained in court.
Phil Beckett is director of disputes and investigations at Navigant Consulting