E-disclosure is a technical and legal minefield but solutions are available

Our increasingly automated society has led to a sea change in the way documents are created, communicated and stored. Typed or handwritten letters have been replaced by documents created on PCs using a variety of processing applications or email programs.

More PC users are becoming prolific writers, with the result that more documentary evidence exists today than ever before, albeit only in electronically stored formats.

This has meant that law firms have had to get to grips with a totally new way of conducting the disclosure process. Electronic disclosure (e-disclosure) – the processes of capturing, collecting, restoring, manipulating and searching electronic documents as part of the system of disclosure in civil litigation – is now the norm.

Electronic documents can be found on a huge range of media, including PC hard drives, CDs, DVDs, backup tapes, USB devices, BlackBerrys, websites, mobile phones, shared network drives and legacy data sets from previous computing eras. All might need to be sifted for disclosable material. Yet documents – electronic or otherwise – aren’t the only potentially important media. Searches of non-text or ‘immediate’ communications – audio, video and especially instant messaging – could also prove fruitful, while social networks, blogs, wikis, Twitter and so on are also possible sources of relevant data.

As Rob Jones, legal consultant at Kroll Ontrack, says: ‘It’s not unusual to find that employees have posted sensitive company information on their personal blogs, or social networking pages, so increasingly we may find information relevant to civil disputes.’

He says even disclosure of Second Life evidence may be relevant to civil, criminal or regulatory proceedings (Second Life is an online virtual world where users can socialise, connect and create using voice and text chat). Although there are various ways to obtain such evidence, he adds, if the suspect has been managing their avatar from a range of different computers, this will make it harder to gain a full picture of what has occurred.

David Naylor, technology partner at City firm Field Fisher Waterhouse (FFW), says: ‘Communicating in Second Life happens through text, voice, the use of graphics or the streaming of content. These communications can only be recorded by the individual at the time of the communication itself, by recording a conversation or copying and pasting the text typed in a string of messages. Unless the communication still exists in Second Life after the event, say on a poster on a wall in a virtual room, it would not be possible to get hold of a record of that communication after the event unless the operator of the virtual world maintains records of user communications.’

If this were the case, you would need a court order to get this information from the operator, he says.

With such a bewildering array of information sources to search, lawyers engaged in the e-disclosure process must feel they are searching for the proverbial needle in a haystack of ever-expanding proportions.

There is technology available to help search, cull and filter electronic information electronically, including software which allows conceptual and contextual searches, automated categorisation and clustering, email threading, duplicate and near-duplicate finding. Newer and more advanced, the application of speech analytics to audio files allows for culling of background noise and voices and speaker identification, and slashes the time conventional listening and transcription would take.

Martin Baldock, UK general manager of Stroz Friedberg, a technical consulting and services company, says immediate comms such as instant messaging need to be covered in policies and, where allowed, should be monitored in sensitive industries.

He adds: ‘Audio is beginning to be covered by some vendors but has only been of use in a small number of cases thus far. Video review is more challenging and is typically machine-intensive. By using neural networks and other similar techniques it is possible to undertake facial and object recognition; this is some way off for the normal review team, though.’

Baldock adds that firms should guard against allowing ‘the helpful internal IT person’ to get involved and attempt to find evidence without the appropriate tools to preserve metadata (this is embedded in most e-documents and provides a history of the document, such as the original author, document title, creation date, hidden notes, edits, changes and other traceable information).

Hayley Crease, lead project manager at Epiq Systems, says the key trends in e-disclosure are around more sophisticated filtering, review accelerators and review strategies, and Unicode language capabilities.

Crease says: ‘The management of cases across borders – particularly outside the US – has seen an increase in the volume of foreign language documents which traditional processing, OCR [optical character recognition] and review platform could not handle.

‘More recent versions of software, however, handle a multitude of languages including non-Cyrillic languages, which can be captured from electronic documents and scanned hardcopy paper documents.’

The technology is not cheap but then, as Chris Dale of the e-Disclosure Information Project says, neither is lawyer time. Too many law firms, however, he says, are still shying away from embracing sophisticated e-disclosure techniques.

He adds: ‘There has been little forward movement. Leaving aside most of the big firms and the occasional [smaller] advanced one, the main difference is that firms have much more which they send to print than they used to. They have not really grasped as a breed that it is more sensible to handle electronic information electronically than to turn it into paper and read it.’

Rebecca Cushing, a solicitor in FFW’s dispute resolution group, says there can be a general mistrust of providing disclosure electronically, and concedes that it is tempting simply to print off copies of the documents disclosed to review them. ‘This, of course, negates the whole purpose of e-disclosure, which aims to provide a paperless system,’ she says. ‘However, it’s a good idea still to seek inspection of documents, as reviewing them on an electronic medium can easily disguise areas where handwritten comments have been made or covered over.’

Missing the big picture
Deborah Baron, vice-president of legal and compliance at software company Autonomy, says the most common mistake made by lawyers is missing the trees for the document forest. ‘Lawyers tend to focus on a single client and their case, missing the big picture which would give them a broader opportunity to implement advanced techniques and processes that benefit all clients, to improve productivity and reduce cost and risk for their clients and their firms,’ she says.

The current economic crisis, she adds, makes it a good time for firms to implement process improvements, such as client extranets and advanced review, analysis and processing technology that enable e-discovery automation, as all are aimed at lowering the cost of service and mitigating risk.

She says many solutions lack the technology necessary to address the varied, rich data types which are rife in today’s business world.

‘Firms have traditionally turned to third-party vendors that process rich media, but many simply manually convert it into two-dimensional text transcriptions that are rife with errors. Law firms and their clients are frustrated by the need to go to different vendors and spend more time and money on disparate systems.’

As a firm builds its checklist for an e-disclosure solution, she says, it should include a platform that is flexible and extensible with components such as advanced search, language independence, analytics, visualisations, audio file processing, native file viewers, near-duplicate review and interoperability with the firm’s own legal document management system and client extranet.

Baldock warns against firms overstretching themselves. ‘While some vendors claim to be able to cope with all manner of engagements, a sensible approach is to consider what is actually needed. The ability to process one million documents a day is of little value if your review team is only of sufficient size and skill to review 100 documents a week. Law firms can help corporate clients and themselves by working together in advance of litigation.’

Dale agrees, insisting that the primary technology ‘lies between the ears’. Discussions with the clients – both executive and IT (‘since one does not know where data are held and the other does not know why they matter in this context’) – are crucial at an early stage, he says.

‘Who are the players? What is the timeframe? What sort of case is this? An alleged fraud may require a different approach to a simple contract dispute. How do we immediately stop destruction or alteration of existing documents? The conclusion that electronic collections and handling is needed or is best is a product of these conversations, not necessarily its premise.’

Cushing says that, if the disclosure process is going to involve vast numbers of electronic documents, it is wise to agree a disclosure protocol with your opponent.

‘This means that when electronic devices are searched for documents, the search will be undertaken within previously agreed search parameters. This ought to prevent any subsequent challenges as to the way in which the search was carried out. Any searches undertaken on client electronic devices should ideally be carried out by an independent third party, as this will uphold the independence of the search and there can be no criticism of bias or incorrect searching.’

UK lawyers seeking to improve their e-disclosure prowess would do well to read their own rules on the e-disclosure process, says Dale.

‘The definition of a disclosable document is narrower than many people think – not “relevant”, but supportive of, or adverse to, your own or any other party’s case. The practice direction to part 31 of the Civil Procedure Rules is explicitly concerned with e-disclosure but is known to almost nobody, including judges,’ he says.

Rob Jones at Kroll outlines the common mistakes that occur in e-disclosure: insufficient planning; insufficient communication with other parties; failure to challenge obstacles raised by clients; misunderstanding the nature and scale of disclosure required; a DIY approach to managing evidence; not engaging experts at an appropriate time, if at all; and failure to recognise and respond to risks, through lack of knowledge or expertise.

He says: ‘The process could be improved by creating a disclosure roadmap in preparation for negotiations with the other parties and for validation at the first case management conference. Follow the guidelines laid down in part 31, PD31 and other supporting authorities. Conduct thorough searches of evidence and carefully test your reasons for not searching particular sources of evidence (for example, backup tapes). Hold open dialogue with the other parties, find out what challenges they face and will present.’

Ignorance of law
The ignorance of the relevant law is something a committee – chaired by Senior Master Whitaker and including Dale in its membership – is hoping to tackle with the production of a new technology questionnaire and a new practice direction.
Dale says: ‘Two cases last year, Digicel and Abela, go a long way towards exposing the existence and value of the existing practice direction. While we aim to improve it, its present form is valuable – for making sure that everything worth collecting is collected and disclosed and for the opposite – protecting parties against over-disclosure by others and from unwarranted demands for disclosure.’

However, as FFW’s Cushing says, some practitioners advocate the abolition of disclosure altogether because of the time and expense in the overall litigation process; it is one of the key areas that Lord Justice Jackson’s Civil Costs Review is addressing.

She says: ‘Certainly, the number of documents that would ordinarily be relevant for disclosure is on the increase now that businesses communicate by email as well as the “traditional” methods of letter, fax and telephone. Perhaps the answer is to limit the scope of disclosure for claims under a certain value, or to agree in such cases that disclosure of documents by electronic means need not be carried out by the parties and the old way of paper disclosure is sufficient.’

Lucy Trevelyan is a freelance journalist