E-disclosure is a key but transforming tool in modern litigation, argue litigators
With technology changing constantly, how can lawyers best use e-disclosure to help their clients through the litigation process? Four experts debate some of the hot topics in this area.
Q How is the increasing use of social media affecting the e-discovery arena?
Matthew Bunting, partner, Quinn Emanuel Urquhart & Sullivan: We have seen little emphasis in commercial litigation on the social media forms of communication. This may be because the document custodians identified as relevant are not using social media as a form of business communication such that tweets or Facebook messages could be relevant to proceedings. However, based on experience of how quickly email and text message communication infiltrated the business world, it would be naïve not to expect that social media records will receive increased scrutiny in the future.
Julie-Anne Halter, partner, K&L Gates: Like email 15 years ago, social media sites are a novel and convenient mechanism for immediate (and often not well-considered) communication. Although most practitioners are quick to issue third-party subpoenas to social networking site owners to retrieve such content, the US Stored Communications Act prohibits site owners from disclosing user content in response to a civil subpoena. Instead, requesters must serve a discovery request on the party from whom the information is sought. In many instances, publicly available posts on these sites can provide valuable information. In others, courts have examined the sites’ privacy policies to determine whether to grant access to content.
Neil Mirchandani, partner, Hogan Lovells: In the past there was a reasonable time between the creation of technology and when the product of that technology might start to appear as documentary evidence. However, businesses are now adopting, or allowing the use of that new technology, far more quickly.
Social media is part of this trend, and comes with its own challenges. First, unless a copy is taken, the data itself is normally held not by the organisation or the custodian, but by the provider of the social media service. Second, the information can be transient. Third, it can be widely proliferated quickly by people other than the creator. Fourth, the custodian often controls who has access to the information created. This means it is important to move quickly to preserve and collect social media data that is required for the purposes of disclosure and that it may be necessary to approach the provider where the custodian is unavailable or unco-operative. Approaching the provider can be time-consuming and expensive as they are unlikely to produce data without a court order requiring them to do so.
Vince Neicho, litigation support manager, Allen & Overy: Like all new communication phenomena, it will be some time before we experience the full effect of social media on disclosure exercises, such is the lag between dispute and the initiation of legal proceedings. We are already having to consider and include social media in our disclosure planning and deliberations.
Having taken on board some of the horror stories around lax communications following the meteoric rise in the use of email, many organisations sought to restrict or even ban use of applications such as Facebook in the workplace. But the sheer power of the social media tsunami has forced organisations to not only relent on its use, but to embrace it for commercial and marketing purposes.
Q Do you expect Judge Peck’s opinion in Da Silva Moore v Publicis in the US to have a worldwide effect on the use of predictive coding in e-discovery?
Bunting: It is inevitable that predictive coding will be adopted by parties in England and equally inevitable that it will be challenged. While the Da Silva Moore opinion is a helpful review of the issues, the case was decided against a background of a different body of law concerning disclosure obligations. The position is also far from being universally approved in the US. For those reasons it is likely that an English judge would consider the appropriateness of predictive coding from first principles. Predictive coding providers suggest accuracy levels equal to or better than conventional document review. If that can be substantiated in a meaningful way, predictive coding may find favour as a proportionate approach to major electronic review exercises.
Halter: Nearly all clients are interested in software that will help them comply with discovery obligations for less money. Computer-assisted review – in the form of search terms, date and file extension limitations, de-duplication and concept clustering technology – has been used for years to achieve reliable results for less money. Predictive coding is another tool in the discovery arsenal.
However, as the judge said himself in the Da Silva Moore opinion, “[T]he Court recognises that computers-assisted review is not a magic, staples-easy-button solution appropriate for all cases. The technology exists and should be used where appropriate, but it is not a case of machine replacing humans: it is the process used and the interaction of man and machine that the court needs to examine.”
Mirchandani: The need for technologies such as predictive coding during litigation is primarily driven by the fact that the volume of data generated continues to grow and traditional forms of review may not always be reasonable or proportionate.
However, it is only the US – and to a lesser degree the UK – where disclosure rules require this level of review, so it is only those jurisdictions that are finding that the costs of doing so are becoming unduly burdensome.
As such, I would not expect Da Silva Moore to have a significant impact beyond litigation in the US or UK save to the extent that it highlights the availability of predictive coding and the importance of proper processes and co-operation.
The UK Civil Practice Rules already provide for the use of “other automated methods of searching if a full review of each and every document would be unreasonable”, which would include the use of technology such as concept searching or predictive coding.
Neicho: Although this is the first reported case on the topic, predictive coding has been around for a few years. A major element of Practice Direction 31B which deals with e-disclosure is the requirement that parties use technology to assist in the management of documents. Given that the volume of documents that fall to be reviewed for disclosure continues to rise, it has to be accepted that human review of the entire document set is simply not feasible in an increasing number of cases.
The solution is two-fold. Provided that a thorough and reasonable good faith effort has been made to locate and review documents, that there have been no attempts to suppress documents and the parties have co-operated in the disclosure process, that should suffice; and we should use technology not to replace human review, but to complement it and make it smarter.
In addition to using predictive coding to arrive at a disclosure set, there are other key uses. For example, it could be used as a quality control measure, once a human review has taken place, or on the disclosure set a party has received from its opponent. It can also introduce significant efficiencies when analysing a party’s documents ahead of disclosure when they are assessing merits.
Q How should lawyers seek to deal with e-disclosure in cross-border litigation?
Bunting: Consensually, if possible. Where there are parallel proceedings in multiple jurisdictions, different rules will apply. It makes sense for the parties to agree that a single set of rules will be applied. However, parties often find it impossible to reach such agreements. In those cases, the objective should be to avoid multiple handling of documents – an ideal review process would be one where a single pass by a reviewer is effective review for each relevant jurisdiction.
Halter: Earlier this year the American Bar Association (ABA) House of Delegates adopted a resolution requesting the ABA to urge US courts to respect non-US data protection and privacy laws for data subject to US discovery obligations consistent with the criteria originally outlined by the US Supreme Court in Aerospatiale v District Court of Iowa: the importance to the litigation of the information requested; the specificity of the request; whether the information originated in the US; whether alternative means exist to obtain the information; and whether the interests of the US outweigh the interests of the foreign jurisdictions in maintaining confidentiality. These principles are important guideposts for e-disclosure in cross-border litigation.
Mirchandani: The first thing you should do is check what the laws are in each of the jurisdictions before any steps are taken to preserve, collect, review or produce the documents. This may require advice from local experts. The enactment of further regulation by the EU is likely to complicate this picture further.
There can also be conflict between the disclosure requirements of the jurisdiction seized with the proceedings and the laws of the country in which the data is held, which can leave clients feeling like they are in a Catch 22 situation. Here it will be best to raise the conflict with the other parties and, if necessary, the judge as soon as possible while identifying any alternative ways in which some or all the required information can be produced.
Neicho: The short answer is carefully. Cross-border data transfer is fraught with difficulty. Even in circumstances where the parties are based in the country in which they are litigating, the question of cross-border transfer of data can still arise where relevant data is based in another jurisdiction.
Some jurisdictions are more demanding than others. The US courts are notoriously forceful with parties that express cross-border difficulties.
There are provisions to facilitate cross-border transfer, such as Safe Harbour and the Hague Convention and the ability to seek the assistance of the Commissioner (for Data Protection Act exemptions), but a combination of lack of confidence in their effectiveness and the length of time it would take to utilise them render them ineffective in many cases.
Q With the cost of litigation at the top of many clients’ agendas, how can the cost of e-discovery best be managed?
Bunting: Without a fundamental change to the common law litigation process, e-disclosure in large cases will always be expensive. That said, practitioners cannot ignore cost-saving technologies. There was a time when automated culling of review populations using key words was novel and viewed with some suspicion; now it is taken for granted. Further moves towards automation are likely as technology improves and volumes of raw data increase. It is important to strike a balance between being open-minded about new developments and exercising a proper degree of scepticism.
An element of practitioner specialisation is also sensible. Paralegals who specialise in document review know the software and understand the processes; they work quickly, accurately, and provide a more cost-effective service for the client.
Halter: Creating a cost-effective e-discovery protocol begins with a robust records management programme, combined with consistent discovery response procedures across matters. Those responsible for e-discovery should become familiar with the type of technologies used by their organisation so that potential issues can be addressed early in the process. There are also myriad e-discovery software solutions that can reduce the overall cost of discovery.
But it’s not just about finding a technology solution; it’s about identifying the right technology for the organisation. Finally, the most direct, and often overlooked, route to efficient and cost-effective e-discovery protocols is robust communication and a co-ordinated effort between the internal legal, IT, and HR teams, as well as outside legal counsel and discovery vendors.
Mirchandani: The costs of e-disclosure are best managed before litigation arises. Good information governance will mean the organisation will be able to produce quickly and efficiently a focused set of data in response to any request. Throughout any litigation, this will create substantial cost and time savings.
Once the litigation commences the costs of electronic disclosure can best be controlled by effective project management. Building a full understanding of who may have potentially disclosable data, what it is, where it is held, the likely volume and what its collection and review would involve, is critical to determining where the boundaries of a reasonable search may lie, which itself is crucial to controlling costs. Another key component for controlling costs is to ensure that the approach you intend to adopt is discussed and agreed in advance with the other parties.
Neicho: Much can be done to ensure an efficient, cost-effective process. The most effective method of controlling costs begins ahead of any proceedings – contemplated or otherwise. Sound information governance is the key. If a party is well organised in terms of its documents and has in place an organised and well structured IT infrastructure, it will be able to interrogate its systems readily, defensibly and be able to exclude huge swathes of its data and documentation from disclosure searches, thus considerably reducing the pool of documents that fall to be considered for a given disclosure exercise.
At the centre of effective information governance will be a well-considered document retention practice – one that has as much emphasis on routine document disposal as it has on document retention. It will be a brave party that suggests a requested search of its systems would be disproportionately expensive, where they can’t also show that the reason for the expense is not their incompetence in failing to organise their systems and infrastructure.
Document management exercises should take place as early as possible. Remember that the duty to preserve arises at the point that litigation is anticipated.
Finally, perhaps the best way of containing disclosure costs is for parties to have regard not only to their own costs, but those of the action. In other words, be careful what you wish for when setting out your expectations of opposing parties.
Neil Mirchandani; Businesses are now adopting, or allowing the use of, new technology far more quickly
Vince Neicho: The most effective method of controlling costs begins ahead of any proceedings
Matthew Bunting: Practitioners cannot ignore cost-saving technologies
Julie-Anne Halter: Nearly all clients are interested in software that will help them comply with discovery obligations for less money