The Lawyer’s great debate: e-disclosure

From Goodale v Ministry of Justice (2009), where Senior Master Whitaker of the Queen’s Bench ordered the defendants to complete a draft e-disclosure ­questionnaire as part of the disclosure process, to the draft Practice Direction 31B on e-disclosure to the Civil Procedure Rule Committee, which came into force on 1 October 2010, the topic is beginning to dominate ­litigators’ thoughts.

Last week The Lawyer brought together an ­eminent panel for a town hall debate on the subject. Besides Whitaker, they ­comprised Freshfields Bruckhaus Deringer litigation partner Geoff Nicholas, Phil Beckett of Navigant, 39 Essex Street’s Jonathan Bellamy and head of litigation
at Lloyds TSB Aamir Khan.

Slaughter and May ­senior partner Chris Saul chaired the debate in front of a rapt audience of some 70 lawyers, both private ­practice and in-house, who had many questions for the panel. Here is a flavour of the hour-long debate.

How do parties overcome capacity issues in terms of the retention of electronically stored information?

Nicholas: “The costs ­associated with hosting those documents means it’s important to get a level of agreement about whatneeds to be retained. There’s a tension here [as regards] trying to reduce the scope of the initial ­disclosure, but parties are being more ­conscious of sourcing documents later in the litigation.”

Beckett: “Ten years ago we’d print everything out and end up with four lever-arch files. Now if we were to do that the volume of paper would be equivalent to two or three times the height of the Empire State Building. So costs are driven by the volumes of data.”

Is a computer more reliable than a human in deciding whether a document is ­relevant or not?

Whitaker: “It’s important for a human to review the ­volumes of data being ­produced. Predictive coding software doesn’t review ­documents, it ranks them [by] how it’s been taught to search for them. Nobody can be certain that there won’t be documents left over, but you have to take that risk.

“We won’t keep control of the costs of e-disclosure. Forget keyword searches - they’re totally ridiculous.”

[Whitaker then cited an instance whereby you could get a case when a list
of ­keywords have been ­produced and one of those words is ’road’.]

“Nobody thought that ­virtually every piece of paper addressed to anyone would have the word road in it.”

Nicholas: “It’s a journey. We’ll use predictive coding when we’re sure it works. We looked at that option with a number of providers and we and our clients were not confident it was currently adequate.”

Beckett: “Lawyers should introduce an element of sampling. There’s a lot you can do to test keywords at the outset, such as building complex search terms.”

Bellamy: “Most decision-making tribunals are ­wedded to the idea of human judgement and they’ll need persuading that predictive coding works.”

Should the cost of disclosure be confronted earlier and should lawyers be outsourcing document review?

Khan: “We get very nervous about data leaving our ­control, so it’s not something we’re looking at, because we’re not sure you can ­mitigate those risks ­completely.”

Nicholas: “The cost point [in India] is so much lower than document review not just in London, but in the UK. These are skilled people who do the review and then you can do the verification review. Document security is their business. And by the way, there isn’t a trainee or junior associate in the ­country who isn’t going to be sad that we’re outsourcing document review.”

Whitaker: “What people don’t really know about the Digicel case is that, at a cost of £2m, just 17 documents were produced that were relevant.”
How do you carry out a ­reasonable search in a ­company with a diverse set of IT systems?

Khan: “We have two teams in Hove and Halifax who can’t access each other’s ­systems because the IT ­systems [haven’t yet been integrated]. From a client perspective, we want ­empathy from our advisers, who won’t realise how ­difficult it might be for us to get those documents with those disparate systems. We’re integrating them now, but it’s a long-drawn-out process and institutional knowledge is absolutely
key.

“Some people in my team have been here 20 years and that’s really valuable. You can have the computers and software, but sometimes it’s about the human element.”

What happens in multijurisdictional cases and different data protection regimes?

Nicholas: “You’ve got to have an awareness of the ­jurisdictional reach of local law and where it’s applied, so you need to address at
an early stage the data ­protection issues - you ignore that at your peril.”

Whitaker: “Some people take the view that it doesn’t ­matter and nobody will notice - and then they’ll get arrested. Bear in mind the European Arrest Warrant.”

Is Practice Direction 31B ­working?

Nicholas: “With the electronic questionnaire, if you do it properly it takes time - bear in mind the statement of truth at the end of the document. You need technical support, as a lawyer doesn’t necessarily understand [the technical issues].”

Beckett: “It’s driving good behaviour to make sure you consider things earlier on.”

Whitaker: “To be honest, it’s too early to tell. Some people are ignoring e-disclosure completely and going about things in the same compartmentalised way.

“The important thing is to see how it’s working in the Mercantile Courts, where saving money and keeping things proportionate for smaller businesses is incredibly important for them and for the economy as a whole.”

Bellamy: “It’s working for those people who’ve read the direction.”

Khan: “In theory it should work because it reflects modern business practice.”

THE LAWYER DEBATE NO 3: INDIA

4 May 2011, The Brewery, Chiswell Street, London

The third in The Lawyer’s series of Question Time-style debates will focus on:

• How best to navigate ­developments in the Indian legal market.
• India’s strategic importance, its economic advantages and why it has become a preferred investment location.
• The opportunities, pitfalls and challenges of investing in India.
• Is India as protectionist as is commonly perceived?
• Common misconceptions about Indian IP issues.
• What impact will the Bribery Act have on UK firms investing in India?
• The many Indias: navigating the federal system of India.
• Deadline 1 June: the ­implications of proposed ­merger activity provisions stemming from the ­Indian Competition Act 2002.
• The door swings both ways: working with Indian firms investing in the UK.