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OCTOBER 2013
Legal Focus
83
IT is more than a technicality; it is a driver of success.
This month, Lawyer Monthlybenefits from an exclusive article on International Discovery from Bernard Regan, Manager at RGL Forensics and Mark Deem, Partner at Edwards Wildman.
W
e are drowning in data. Whether in our personal or private lives (and increasingly the two are overlapping) we are creating ever more
documents, communicating on ever more
platforms and leaving trails of electronic evidence for the lawyers to use litigation in ever more places. Pity the poor lawyer therefore, faced with conducting an electronic disclosure exercise of terabytes of data, in order fundamentally to discharge the same pre-digital era test under English civil procedure, which requires a reasonable search for documents which might adversely affect the party’s own case, or indeed might support another party’s case. Potential costs sanctions are awaiting a non-complying party.
Faced with this position, standard disclosure using traditional methods is simply no longer achievable. A physical search for documents – which was always a costly and time-consuming exercise – is insufficient to discharge a party’s disclosure obligations.
Increasingly, however, an electronic keyword search conducted at local server level - a frequent response to the eDisclosure practice direction requirements – is also unlikely to achieve more than entry-level compliance with the rules. Seldom will it ever give a party to litigation a competitive edge, which can be the difference between a successful outcome (either at court or through an early, favourable settlement) and failure.
What is called for now is a hybrid approach: combining a comprehensive, forensic search to collate a sufficiently wide data set, with a robust, strategic interrogation of that data set in an electronic environment.
This approach, which calls for lawyers to work hand-in- hand with trusted forensic IT providers, still creates a number of challenges.
• Data is being increasingly stored by companies in multiple locations, sometimes in other countries (thereby creating potential jurisdictional issues) and often in large data centres, under the control of third parties. The forensic acquisition of data and the transportation of that material across jurisdictional borders therefore represents a very real concern. This is all before any data is processed and interrogated.
• To the extent that personal data (or sensitive personal data) is likely to be involved, appropriate
consents will need to be obtained and procedures followed by the company, its service providers and lawyers.
• As if this was not troublesome enough, the advent of the ubiquitous but ill-defined “cloud” has made the tasks even harder: where is the data actually being held? Does the relevant party genuinely have access to it? If so, on what terms? Perhaps crucially, does the disclosing party know what documents it actually has, where they are and how to deal with its cloud provider quickly to get them?
• Once collated, the sheer volume of data needs to be streamlined effectively so that important documents are captured and assessed quickly from a strategic point of view. A chronological review of all documents in turn by lawyers (however junior or hard working) is inefficient and costly: but by deploying available technology (including predictive coding),
in
combination with legal expertise, a party can swiftly distil a wider data set into a focussed core.
As the data explosion continues – and terabytes of data turn into petabytes of data; the uptake of personal and corporate clouds for storage increases; and the convergence between public and private data becomes an irreversible reality – there is a real risk that the true purpose of disclosure is undermined. Rather than seeking to level the playing-field between two parties in litigation and to open up access to documents to both sides in the pursuit of justice, the exercise becomes more about whose data (whether by accident or design) can be retrieved and whether it was done so appropriately.
This inevitably leads to an increased risk of satellite litigation, focussing not on the merits of the case but on the ways in which the disclosure exercise can be challenged. Absent any change to the rules, this is the reality of where we are heading, especially if parties continue to conduct disclosure in the traditional manner
Against this background, a party who is truly “Disclosure Ready” will ensure it has the upper hand in any litigation.
It is the party, which has a plan and knows where its data is located, who will be able to ensure timely and cost-efficient compliance with its disclosure obligations. It is the party, which brings together its forensic IT providers and lawyers at an early stage in the litigation process, who will be able to ensure that data is stored
in a sensible manner, necessary consents obtained and legal issues anticipated and resolved in advance. It is the party, which can quickly collate a wide data set and use both the technology and legal expertise to establish the core documents, whose disclosure exercise is less vulnerable to attack.
A well-executed, pre-planned disclosure exercise can give the all important edge in the litigation process in these days of unprecedented data production. Are you disclosure ready? Now, more than ever, IT is the key. LM
Bernard Regan, Manager at RGL Forensics
Bernard has in-depth experience of a number of It systems and specialises in the application and management of computer forensics processes. this includes conducting investigations, implementation of document and data e-discovery systems, data analysis and data visualisation.
Mark deem, Partner at Edwards Wildman
Mark is a commercial litigator specialising in technology, media and telecommunications (tMt) litigation, financial services disputes and contentious privacy and data protection issues. He has experience in a variety of industry sectors, including aviation and aerospace, banking and finance and tMt.