How can lawyers control the disclosure of electronic documents in litigation? Big business can help, says Rupert White

‘We are now in the middle of an unbelievable information explosion, and when you actually think about the way in which information is now created, you can begin to see what the issue of electronic disclosure is about. It’s about this: well over 90% of documents now, certainly in the commercial world, are originated electronically,’ says long-time legal IT guru Professor Richard Susskind.


‘Only about 75% of these, it is said, ever see the light of day in terms of paper. Most of the evidence relating to any particular transaction or project is held electronically. A huge amount of it is held within e-mails,’ adds the recently appointed co-chairman of the Information and Technology in the Courts Committee (ITAC).


Mr Susskind, who was speaking at the Society for Computers and Law 2006 lecture last week, continues: ‘The challenge of electronic disclosure is that when you come to disclose all that information to the other side, how do you get hold of all the information?’


The numbers should speak for themselves, so why is there still so much confusion about e-disclosure?


The term is well known to lawyers who have to deal with disclosure and production of large quantities of electronic documents. But when asked to define it, a confusion occurs in both explaining e-disclosure as a specific legal term and as an overarching concept, pulling in areas such as electronic filing, document management, electronic presentation of evidence and even computer forensics. But there is no reason why e-disclosure cannot be all these things. Unless, perhaps, you are a vendor trying to explain it.


‘There is still considerable confusion over what is and what is not e-disclosure,’ says Jonathan Brewer, head of practitioner solutions for LexisNexis. His view is that lawyers still confuse e-disclosure (collating, reviewing and disclosing electronic documents) with scan and code (digitising paper so it can be searched electronically).


When prompted, lawyers who have been involved in e-disclosure make the distinction between e-disclosure and taking paper-based documents and digitising them. The difference is that vendors have to see the process of bringing litigation into the 21st century in clearly demarcated areas, whereas knowledgeable practitioners recognise that the disparate documents that will end up in court will not only most likely all be presented electronically, but also increasingly start out that way.


The one development above all others that is threatening the way e-disclosure is done today is e-mail. The sheer volume of e-mail and other electronic documentation now present in commerce is such that some fear for our abilities to manage them in disclosure and litigation.


‘Woolf thought of cutting down the documents to be disclosed only to those which were peculiarly relevant,’ says Lord Justice Neuberger, the judge in charge of modernisation and the new head of ITAC. ‘But it’s all arbitrary about how far you look, and any judge who’s had to decide to order somebody to effect more disclosure or more investigation knows that he’s just doing it by the seat of his pants.


‘And the other big problem is searching through your electronic records where there’s a mass of stuff [and] the stuff that’s been double-deleted is still there and you have to put it together again. The amount of work you have to do can be quite extraordinary. I think there is an argument, and I can’t put it higher than that, to say it’s worth looking at other countries [such as France and Germany], if you really want to cut the cost of litigation, which do not have automatic disclosure and comprehensive disclosure.’


In other words, disclosure as we know it could become untenable because of the way companies now do business.


But perhaps there is a way to stop the UK becoming, at some visceral legal level, France. As Mr Brewer says, lawyers may well be daunted by e-disclosure for all the wrong reasons, but the responsibility for allaying these doubts and fears rests with law firms and in-house legal teams. If companies can manage their documents better, e-disclosure will be a far less painful process, but they need to be told.


‘I think the electronic documents are all there, [but] where they’re being stored is all over the place at the moment and what’s causing the cost is finding them,’ says Janet Lambert, a partner at City firm Barlow Lyde & Gilbert. Ms Lambert is a member of the Commercial Court Users Committee, and was a member of the working party responsible for that court’s report on electronic disclosure.


She says proper document management will help, and that as technology improves it will also help to reduce costs. Ms Lambert is advising her clients on how they can best manage their document retention, storage and destruction policies, so that e-disclosure becomes ‘as simple as possible’. IT people tend to call this ‘document lifecycle management’. The trick is to get clients to buy it.


Arguably, nowhere is this more important than in highly litigious areas of commerce, such as construction. ‘It’s risk management, that’s what it is,’ says Kate Matthews, a partner at Surrey firm Shadbolt & Co, a specialist in construction litigation. ‘One-off [litigation as a force for IT change] is more difficult to sell to your business as an in-house counsel. I’d imagine the board wouldn't be particularly excited by going through a risk management process, with quite an overhaul to the business, for a one-off litigation. But for repeat business it’s essential.’


Andrew Jones is a litigation professional support lawyer at City-based Clifford Chance and a leading member of the Association of Litigation Professional Support Lawyers. He agrees that clients find it hard to turn on a sixpence when responding technologically to litigation.


‘You can’t turn round to an organisation, especially a large organisation, and say that “this bit of litigation demonstrates what you really need is a whole new document management system and e-mail management system”,’ he says. ‘Corporations are only now starting to get to grips with e-mail management the way they have previously got to grips with document management.’


Perhaps more lessons can be taken from the US. Michael Taylor, legal consultant for vendor Kroll Ontrack, is one of many saying this. ‘In the US, in-house counsel are becoming more involved as companies recognise that the sooner this process can be addressed, the more economically and effectively it can be dealt with. In-house counsel should look to proactively organise and train their IT function,’ he says. Mr Brewer agrees that the UK should look to the US for direction on what will only become a more complex problem.


So what of this complex future? Prof Susskind predicted at his lecture that e-disclosure will become ‘one of the most significant topics on the agenda of those involved in dispute resolution in the coming ten years’. One of the reasons for this could be the next set of what can be called ‘disruptive technologies’ – multimedia such as instant messaging, video communication and voice over Internet protocol. The rate at which these will be taken up, IT boffins generally agree, will be staggering and may yet fundamentally affect our ability to effect e-disclosure as we know it.


The technologies necessary for astoundingly clever and complex ‘knowledge systems’ will be there, Prof Susskind said, and we will surely need them.


‘We’re looking at CCTV, we’re looking at videos, we’re looking at voice,’ Prof Susskind warned. ‘[For example] we need to borrow techniques from the intelligence community, who can search through tens of thousands of hours of voice recordings for the occurrence of the words “al-Qaeda”. That’s the kind of techniques and technologies that we’ll need to evolve.’


And if those involved in e-disclosure now who have an eye to the future are right, lawyers will have to learn to love them.