Tech heart

Has Practice Direction 31B on e-disclosure made a difference yet?

Benjamin Watts, litigation, ­employment and education team leader, Kent County Council: E-disclosure remains a significant issue for litigating parties. In my opinion the practice direction has helped in two key ways.

First, it ­encourages parties to have sensible discussions about the type and ­extent of any search. Second, it ­allows me as a solicitor to have a full and frank discussion with my client about the implications of that search at an early stage. It is useful to have the practice direction as clear ­guidance around how to deal with the issues and to avoid costly and ­unnecessary demands.

That said, there is still a long way to go and it is often difficult to keep pace with technological changes. There are still too many people involved in litigation who do not understand ­obligations and opportunities around e-disclosure.

Ultimately, what is needed most is a greater ­understanding of the realities of e-disclosure by the individuals who handle the early stages of ­litigation and who are often not legally trained.

Angela Pearson, partner, Ashurst: Yes. Our experience of the practice direction has been broadly positive. It has increased the profile of
e-disclosure and clarified best ­practice in the area. The questionnaire that accompanies the practice direction has made it much easier to ­engage clients and other parties in the disclosure process at an early stage.

It also provides us with a ­valuable internal audit trail to allow us to track the decisions made in the disclosure process and where necessary provides information to support those decisions.

Chris Dale, e-Disclosure Information Project: Anecdotally, the ­practice direction is driving earlier attention to e-disclosure obligations and to the (existing) duty to discuss sources and potential difficulties, ­although take-up is patchy, despite the fact that the direction applies to nearly all multi-track cases.

The electronic documents questionnaire is being used as a sensible checklist even outside those (few) civil cases where its use is made ­compulsory, and in regulatory investigations. My guess is that its primary use is for cases where the scope of disclosure is disputed anyway rather than as the default behaviour, and mainly after a disputed case management conference instead of in ­advance of it.

Have litigating parties got to grips with the storage and retention issues associated with e-disclosure?

Watts: There have been considerable improvements in recent years around storage and retention issues. Defendants are now becoming much better at thinking about retaining electronic information for potential litigation that they may face.

That said, due to the sheer volume of electronic information created by a defendant, such as a large public sector organisation, the ability to ­retain information depends in part on an understanding of what might result in litigation in due course.

In many cases it is simply not ­possible or financially viable to retain electronic information for up to six years to ensure that limitation on any issue has expired.

Claimants have a considerable ­advantage in knowing at an earlier stage that they might be bringing ­litigation. There needs to be an understanding that defendants will be able to recover less information as time passes and that should not prejudice defendants. It is always preferable when a claimant solicitor writes at an early stage to indicate a potential claim and ask for retention - that discussion is central to retaining the relevant and important ­information.

Pearson: The preservation of ­documents and the suspension of ­destruction policies required by ­litigation continues to create storage issues for some clients, who may not find it easy to suspend their normal data management policies.

However, where clients have ­invested already in information management, perhaps for reasons of data security, compliance or operational efficiencies, they are likely to find significant benefits when it comes to litigation.

In those circumstances it is usually much easier to locate and ­retrieve ­potentially relevant documents and preserve data sources.

Dale: A few law firms, mainly the larger ones, have training and ­checklists that cover these issues. Too many lawyers (those who focus in this at all) default to ’collect everything’ rather than trying to understand the issues.

Lawyers engaged in complex ­litigation in one New York court must now certify that they understand their clients’ systems, and perhaps we need something similar.

Many companies are beginning to focus on storage and retention as part of wider information governance, but most of them are at the foothills. ­External lawyers are slow in promoting proactive discussion with their clients about the subject.

Is the increase in the use of e-disclosure making lawyers’ lives easier?

Watts: At the moment, no. These are complex searches that often require a detailed understanding of technology, which lawyers are simply not trained on. However, as techniques for carrying out searches develop and retention practices improve, we could reach a point where e-disclosure does make our lives easier.

The problem at the moment is that information is often set up to be stored rather than searched - the electronic equivalent of throwing all of the papers for a case in a cold, dark room. Electronic information is now being stored in a more sensible order with searching in mind, so hopefully we will reap the benefits in future years.

Pearson: It would be more accurate to see e-disclosure as requiring a ­different skill set from lawyers rather than making their lives easier. The challenges involved in large e-disclosure projects can be considerable.

Increasingly litigators need to have sophisticated project management skills and a familiarity with the software tools to manage effectively the disclosure exercise and ensure that it is scoped properly so key documents are identified at an early stage.

Dale: Only a fool would claim that a lawyer’s first e-disclosure exercise will be easy. The crossover between law, rules, logistics and project ­management needs experience.

In any case of reasonable size, the proper use of technology and, where appropriate, external resources is ­always going to be easier than the ’print, copy, read’ approach, which remains the default for too many ­because it is easier to collect and search electronic documents. Few would go back to ’print and read’ ­having done one case electronically.

The real point here, as Lord Justice Jackson emphasised, is that e-disclosure is “inevitable in cases where the parties hold the relevant material electronically”.

Lord Justice Jackson and Senior Master Whitaker have been instrumental in driving the development of e-disclosure. Do you think the judiciary needs to do any more to lead further use of e-disclosure?

Watts: The practice direction has ­improved things and more active and aggressive case management in this area by the courts will certainly help things. It would also be helpful if there could be consistency around what a proportionate search is, but ultimately it might take a few more appealed cases to achieve that clarity and consistency. In the same way that it challenges lawyers, ­technological ­issues and what is achievable can be an issue for the ­judiciary. Good ­training for judges is obviously ­important, but there is a duty on all of the parties and the court to work ­together to make sure we have a shared ­understanding of what good and full e-disclosure looks like.

Pearson: The requirement for ­judicial involvement is likely to move away from ensuring that parties ­engage in the e-disclosure process ­towards ensuring that they are taking approaches that maximise the ­efficiencies that can be achieved from technology and are used where they are appropriate to the case.

Increasingly the judiciary are likely to find themselves faced with ­disputes about the scope of e-disclosure or the extent and type of software that can be used to assist the manual ­review of documents. Such disputes are likely to be the inevitable consequence of attempts to carry out more targeted reviews over ever-expanding data populations.

Dale: We have a long way to go before all or most case-managing judges ­actively manage cases as the rules ­require. They are given no ­training on e-disclosure and it is largely down to the parties to take the lead.

The pending new Rule 31.5, which will replace the easy default option of standard disclosure with a ’menu ­option’, was intended to, and will, force judges to focus on what is ­appropriate for the case.

The rules ­already require them to identify the most efficient course, but too many of them are just ticking boxes for the ’safe’ course of broad disclosure.

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Stupor highway

E-disclosure should in theory make the complex process of litigation easier than it currently is. A number of teething problems have emerged in recent years, though, and although rules are being implemented to ease the way, this week’s panel agree that there is still work to do.

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The provider’s view
Jim Kent, managing director Europe, Nuix

This discussion highlights how lawyers continue to lack enthusiasm for e-disclosure and using search tools to advance cases. The reality is that most evidence is electronic and data volumes are exploding - the sooner lawyers can understand and manage the electronic components of their matters, the more successful they will be.

We have seen previously loyal corporate and government clients replacing their law firms because other firms could quickly search and cull the data to come up with fact-based answers, reducing the time and cost of the case and improving the probability of success.

UK firms are lagging in terms of adopting e-disclosure technology. The early-adopter firms have only purchased in-house, enterprise-grade systems such as Nuix and Relativity in recent months. Practice Direction 31B may be driving this, as the questionnaire is useful for firms trying to understand their obligations.

I would argue that e-disclosure technology is now easy for lawyers, paralegals or even partners to use, and once they get experience with a leading interactive system they will never go back. In particular, representing data visually allows lawyers to understand and pinpoint relevant data quickly, even within massive information sets.

Legal teams can add enormous value to their clients by using investigative review techniques to perform genuine and effective early case assessments. Investigative review allows lawyers to automatically eliminate irrelevant data and quickly locate the few key documents on which a case relies. By harnessing technology and good methodology, the slow and expensive process of requiring teams to read great numbers of irrelevant documents to try to find key facts is redundant.

The other value-add we see in the US, and that I expect to see soon in the UK, is senior partners advising their clients on how to undertake defensible deletion programmes. The drivers for this are to avoid masses of irrelevant data being identified from blind keyword searches in
an e-disclosure event, as well as reducing the cost and risk of storing so much redundant, outdated and trivial data.

One company reported a 95 per cent reduction in e-discovery costs after completing a defensible deletion programme. Another expects an immediate fourfold return on its investment due to the reduction in storage and its ability to turn off legacy archives.

UK lawyers are well-placed to embrace e-disclosure as a core strength, making use of the technologies that can help them understand, practise and master e-disclosure. The value they can bring to their clients is enormous, both in terms of case management and in helping organisations to structure their information systems to gain more control over their data.