The electric avenue

The electric avenue
At face value, dealing with electronic evidence may seem no different to any other, but there are some serious pitfalls for the unwary or unprepared.

As lawyers prepare for a wave of post-credit crunch litigation, those whose contentious skills have become a little rusty during the boom years will find that one aspect of dispute resolution has changed irrevocably – the volume of documentary evidence that is now stored in electronic rather than paper form.

Technology has caused an explosion in the sheer number of documents that can be created and stored (a single CD can contain tens of thousands of documents), while the use of IT also means that some of the most valuable evidence contained in electronic documents is not immediately obvious. A document’s metadata (the invisible record of when and by whom it has been created, read and amended) can in some instances be more crucial to a case or investigation than the actual content of the document. If handled incorrectly this evidence can easily be damaged or lost forever.

Here three professionals on the frontline of e-disclosure outline some of the key aspects of e-disclosure that lawyers need to know.

Now is crunch time for litigators. Over the past few months City litigation teams have been battling to win financial institution clients as the credit crisis leads to an upturn in disputes.

The upsurge in intra-bank disputes has also led to a shortage of talent within in-house teams, such as those of Barclays Capital, Credit Suisse and Goldman Sachs, as law firms do not have enough lawyers to give up for secondments.

These dispute issues have been exacertabed by an ever-increasing amount of electronic evidence. This Litigation/ADR Special Report examines how firms are dealing with this worrying issue.

The report also looks at the legal landscape 10 years on from Lord Woolf’s reform of the civil procedure rules, as well as the technicalities around what might constitute an unreasonable exclusion clause.

Litigation support specialist Vince Neicho is litigation support manager at Allen & OveryThree years ago we were working primarily with paper documents, scanning and manually coding them in order to upload them into our case management system for our lawyers to review. The rapid change to the present position – where the vast majority of documentary evidence that we now deal with is in electronic form – creates new business challenges for us.

The first of these is to deal with the scale of documentation that electronic evidence involves and the variety of formats and media that it is held in – not just word processor files and emails, but also text messages, instant messaging files and voicemails. Moreover, cases are not restricted to the boundaries of a local office – potential evidence can be dispersed as far and as wide as email communication itself.

Standard review tools such as Outlook and Windows Explorer were not designed to deal with e-disclosure. There is no legal review workflow built into Outlook and, as a result, the process of tracking, recording and checking the review can be a laborious one. Furthermore, the system also made it difficult for multiple users to review the data concurrently.

For these reasons we engaged the services of a specialist e-disclosure company to extract, de-duplicate (remove unwanted data) and process electronic evidence. We had already invested money in our own case management system, Ringtail, so it was essential that the processed electronic evidence provided could be cross-referenced with our existing data and then transferred into and reconciled with our own systems without damaging its integrity.

This has enabled us to save considerable time when reviewing, searching and sorting electronic evidence, as well as making the process much more reliable and predictable, which is essential if we are to comply with the civil procedure rules’ (CPR) requirements to meet and cooperate with opposing parties at an early stage to establish the scope of disclosure.

Another key step is for the external law firm to work closely with their client’s internal counsel and IT director to advise on and assist with the document preservation and retrieval processes.Forensic investigator James Kent is director of technology and consulting at computer forensics services provider 7SafeFrom a forensic point of view, the big difference between paper and electronic evidence is the provenance of the evidence. With hard-copy evidence, you simply get a piece of paper with information on it that you can review, but producing that information digitally can be done in many different ways and can have a very long trail behind it.

Processing can alter or damage electronic material, especially the metadata, and older versions of documents can be lost. There are so many ways that documents can be damaged or manipulated. So if the other side hands you a CD full of documents, can you afford to take it at face value? Does it contain everything? Has it been manipulated or altered?That is where we get involved, by tracing electronic evidence back to the original documents to make sure it is the genuine article. We forensically image the whole of the computer so that we always have a snapshot to go back to.

It is a bit like doing house-to-house inquiries in a criminal investigation. You do not just take other people’s word for things – you need to gather your own evidence.

We extract and preserve evidence to the Association of Chief Police Officers’ digital evidence standards, so that wherever the case ends up, the evidence will stand up. There are cost implications: it needs highly qualified people and sophisticated software. However, it is important that the evidential integrity is preserved.

Mike Brown is executive director of Epiq Systems (previously PinPoint Global)One of the big problems facing lawyers at the moment is the lack of rules governing e-disclosure.

The CPR say that the volume of evidence should be proportionate to the case involved, but provide very little detail on what this means. The US has taken a more liberal approach, which has led in some cases to parties swamping the other side with electronic documents in the hope that they miss the proverbial ‘smoking gun’. Another aspect of e-disclosure that has yet to be tested in the UK courts is the circumstances in which incorrect handling of electronic evidence leads to spoliation. We see maintaining the integrity of electronic evidence as an increasingly important issue and have done a lot of work on our processing software to ensure that there is a chain of custody right back to the forensic image of the data.

Given that evidence is increasingly likely to be found in electronic data, it is essential that lawyers understand the process of e-disclosure. By taking this approach, lawyers can better guide their clients and save considerable time and expense.

BACKGROUND

What is e-disclosure?

E-disclosure (also known as e-discovery) is the process of finding, securing and providing electronic data with the intent of it being used as evidence. Simply put, it is the process of turning data into evidence.