Stand on London’s Strand on any weekday morning and you will see a stream of barristers and their clerks wheeling trolleys, stacked with cases of lever-arch files, across the road from their chambers in The Temple over to the Royal Courts of Justice.
What you are witnessing is civil litigation in action, as it has long been a principle of court procedure that all parties must disclose key documents in a case to the other side.
In other words, litigants cannot deliberately conceal or, in the worst-case scenario, shred documents that contain evidence that might assist the other side. The rules on disclosure are complex, involving issues such as “privilege”; however, they are there to ensure both sides fight fairly.
The one drawback with the traditional approach to discovery is the original rules were drawn up in an era when litigation was not document intensive: there would be handwritten notes and typed correspondence and deeds, but little else.
Today by comparison, the advent of photocopying, word processing, corporate databases and e-mail means the scale of documents that may be involved in a corporate dispute or a public liability case has increased from hundreds to tens of thousands and, in some instances, millions.
One important consequence is that it is no longer possible in terms of time, or financially viable in terms of costs, to have all these documents individually examined and classified by teams of lawyers.
The scale of documents that may be involved in a corporate dispute or a public liability case has increased from hundreds to tens of thousands and, in some instances, millions
Instead we now see the use of eDiscovery software – for jurisdictional reasons the eDiscovery process is called eDisclosure in the UK – and litigation technology being brought in to digitally process all the electronically stored information (ESI) that may be associated with a case.
eDiscovery systems do not replace lawyers, but they are very valuable at sifting out duplicates and recognising patterns, through expert system-type technologies such as predictive coding, to bring down document numbers to manageable volumes.
For this reason, eDiscovery now also plays a major role in early case assessment (ECA), when a corporation will evaluate whether a legal claim is defensible. For example, is there a damaging document lurking in the archives?
This is a particular problem for multinationals with global networks of subsidiaries they have acquired over time. And, will the cost of fighting the case outweigh the value of the dispute? The courts call this “proportionality” and now actively encourage settlement as an alternative to lengthy litigation.
Interestingly, while eDiscovery technology may have begun its life in the litigation arena, one of the more interesting trends in the UK and Europe over the last couple of years has been the growing use of the same systems by in-house counsel in a non-litigation context, such as regulatory and compliance investigations and reporting, and even for dealing with Freedom of Information requests.
The issues are the same: modern corporations and government agencies have so much ESI stored within them that it is no longer possible for individuals to adequately curate it. And, with administration and legal budgets continually under pressure, many general counsel feel that taking the eDiscovery process in-house is now a more cost-effective approach than outsourcing it to firms of lawyers and accountants.
