IT experts who work with the legal profession are apt to complain that lawyers’ grasp of IT extends to Word and email. As the Gazette’s feature on e-disclosure notes, even routine use of technology like this generates awe-inspiring quantities of data.
To unpick events in the modern world – as must happen in litigation and investigations – sense must be made not just of the volume of ‘documents’ created, but also the relationship between such documents that is evident in the information created about emails, files, messages and calls (metadata).
This presents a series of challenges. The first is for lawyers, whose ranks are disproportionately skewed towards people with degrees in arts and social sciences. They must understand more about the nature of evidence that is created – and how, with the help of technologists, it can be interrogated.
The challenge for the judiciary is twofold.
Like the litigators before them, they must understand something of what is being presented and have a clear sense of what constitutes a reasonable common standard for discovery to meet. In addition, they must consider whether the style, procedures and management of litigation suit the nature of the evidence – the complexity of the latter having only a loose relationship with the value of a dispute.