By | 30th November 2009

Legal Week of 12th November published an article by Craig Earnshaw and Nick Athanasi of FTI Consulting entitled E-discovery Demystified

The authors asked whether e-discovery technology was too far out of their comfort zones for lawyers despite its potential to save time money and effort. They set out to demonstrate that the process of electronic document collection and review need not be cumbersome, time-consuming nor a technical minefield.

I know Craig of old and know he has a huge amount of experience of document collection, electronic document management and handling contentious cases. I do not in any way seek to disagree with what he says but would like to add a few comments:

  • If you have read my previous posts on the subject, you will be well aware that I have made it something of a mantra that the CPR has for some years now contained rules which require litigants to give disclosure of the documents which aid and hinder their case or the case being advanced by the other parties. Lawyers are also supposed to discuss with their opponents the format and method of disclosure, although many lawyers appear to be unaware of this provision or choose to ignore it and the courts have generally tended to connive in this game.
  • It never has been acceptable for lawyers to ignore these requirements, in my view, but litigants have got away with it because the courts have allowed them to do so. No more!! See Earles v Barclays Bank where His Honour Judge Simon Brown states at paragraph 71 of his judgment that:

It might be contended that CPR 31 PD 2A and electronic disclosure are little known or practised outside the Admiralty and Commercial Court. If so, such myth needs to be swiftly dispelled when over 90% of business documentation is electronic in form. The Practice Direction is in the Civil Procedure Rules and those practising in civil courts are expected to know the rules and practice them: it is gross incompetence not to.”

  • Many cases settle before they get to court. Many, indeed, settle very early in the process and still more settle before proceedings are under way. While the full range of technology wizardry is available for those cases which merit it, the majority of cases do not warrant this treatment.
  • The majority of cases can stand the use of simple collection and search techniques which enable lawyers to analyse and review documentation quickly and effectively and at a cost which is proportionate to the sums in issue. As my colleague James Moeskops has said (Legal Week 7th May 2009), “ a key benefit of the technological improvements, reduced prices and increased speed is that the latest e-discovery technology is available to any law firm of any size in any matter, at a price which will be proportionate to the claim”.
  • Lawyers are expert at teasing out the issues in a case, preparing the case for their client or their defence to allegations form the other side and knowing what they need to prove and where to find it. Craig makes the point that it all comes down to consultation. I agree and faced with a warehouse full of decaying paper in a far flung part of the country, or on the banks of the Thames, as I vividly recall when I was a young lawyer, I know that I would far rather have a volume of electronic data to review with a friendly and responsive provider to help me through any intricacies involved. Whichever provider is chosen the key is to discuss with them what the objectives are and then to agree a way to achieve these objectives. If it involves sophisticated techniques like clustering or mapping workflow processes then the technology is there to help.
  • Often, however, there is no need for such sophistication. The average case is pretty small both in terms of sums at issue and data to be collected. I am all for lawyers being able to call for assistance from whatever quarter which is appropriate to the problem they have to solve. Experience shows that the best results are achieved by close cooperation with a provider of e-discovery services and can often be achieved for a few hundred and definitely for a few thousand pounds. This brings almost every case within the sphere of Smart E-Discovery where there is just no need or benefit in spending lots of money on the process. Indeed, it will often be disproportionate to do so.
  • If the case requires finding a needle in the haystack, there are firms and technologies in the market to help with that process. Most cases are not like that and the parties just need to find the relevant documents and their lawyers can then advise them early on the issues and their chances of success. Technology is now available at the right price to assist that process and more and more lawyers are beginning to realise that this makes their job easier while in no way usurping their primary task to analyse and review the data and advise their clients accordingly.
  • Keeping up to date with developments in this field is the job of firms like FTI and Millnet. New technology abounds and updates to software often happen every month or so. Indeed, my eye was caught only this week by a press release from iCONECT announcing their new solutions for early case assessment. [Early Case Technology Revolutionized ,17 November 2009]
  • Technology must be the servant of the litigant and should never be allowed to wag the tail of the litigation dog. After Earles, every litigator needs to abide by the rules, because it is “gross incompetence not to”.

Returning to the title of Craig and Nick’s article – “E-discovery Demystified” – I am all for it!