Litigation support and e-discovery: Sooner rather than later

The old approaches to reviewing electronically stored information needed changing. Finally, after the first noteworthy judgment was given, the calls have been heard, says Kelvin McGregor-Alcorn

The English Civil Procedure Rules (CPR) were amended in 2005 to give more clarity in respect of electronic discovery (ED), yet it was some three years later before a substantive judgment was given in this area.

In Digicel v Cable & Wireless, Mr Justice Morgan highlighted the fact that the parties had not conducted a case management conference to address the subject of ED - as defined in the revised CPR 31. Clearly, most of the issues in the case should have been discussed and resolved at this stage rather than in court.

The legal team spent 6,700 hours systematically reviewing around 1,140,000 electronic documents and emails. They determined that about 5,200 were relevant at a cost of around £2m. Mr Justice Morgan determined that "the rules do not require that no stone should be left unturned. This may mean that a relevant document, even 'a smoking gun' is not found. This attitude is justified by considerations of proportionality".

The management of the case was not conducted as defined in the CPR and the approach to the document review was not considered as reasonable and proportionate. This ruling clearly sets out a revised approach for any lawyer having to review electronically stored information and working within the framework of disclosure obligations.

In this context, when we ask lawyers the question 'do you use specialist technology and service providers in your review of electronically stored information for purposes of ED?' the majority answer in the negative. Yet virtually all of today's professional reviews are conducted on information that is, or was, electronically stored.

It is therefore worth considering some of the reasons for the historic reluctance to utilise specialist ED tools and providers. Our experience suggests that they include:

• ED costs are high and 'front loaded'. Driven by a view that every piece of data needs to made available for review, a price for filtering and processing 'per gigabyte' became standard practice in both the US and UK. Clearly with large amounts of data being processed at hundreds of pounds/dollars per gigabyte, plus the hourly charges for the legal review, a perception of high up-front costs was formed.
• The perceived lack of cost effective options. In response to this, some organisations understandably tried to reduce costs. However, previous generations of software that had been used for ED required a disproportionate amount of technical time and resource to configure the software to process and filter the various types of data in each case, as well as having to manage all the technical processes involved.
• The firms that had tried this approach themselves quickly found ED a much more complex and expensive area than had been anticipated.
• The difficulty in comparing suppliers and pricing models. Those buying ED services had assumed a broad similarity of expertise, technology and resources across suppliers, and as a result the per-gigabyte price became the determinate selection factor.

In reality few ED suppliers have provided a complete and integrated range of technology and services. Those that specialise in data collection may not offer review software. Those that offer processing/ filtering software and services do not necessarily provide review software and services. Historically this resulted in potentially having to contract with a number of suppliers/subcontractors working together to provide solutions.

The evolving variety of pricing options from the ever increasing range of ED suppliers still makes like-for-like comparisons difficult.

The way forward

To avoid the problems experienced historically, and to ensure the principles communicated in Digicel v Cable & Wireless, there are a number of key steps that lawyers can and should take:

• maximise the case management conference and other discussions prior to the first case management conference;
• differentiate between suppliers and understand the competencies of the potential service provider;
• understand how today's specialist technology and services assist in the review process;
• understand the critical importance of data collection being conducted to standards that will not be brought into question; and
• review both unstructured and structured data.

The case management conference

Having an agreed strategy prior to the case management conference is essential as it ensures that it can be defended, but equally as important, allows effective questioning of the other side's proposed approach.

However, detailed discussions involving areas such as: the individuals and data that are deemed relevant/irrelevant for review; the manner in which the data is to be collected; the filtering strategy and selected key words; the type of review to be conducted and the resources available to do so; and the technical format for the exchange of lists are often new areas for the lawyer, and not ones in which you want to find yourself 'experimenting'. It is therefore important to confirm the practical experience of the ED supplier/adviser in this area.

Differentiating suppliers

Service providers do not all offer the same services. Some will focus exclusively on technology while others may offer a broader suite of services. To help differentiate: take references from other clients with similar sized projects; fully consider the security aspects of vendor's IT systems and staff; fully consider their project management processes; fully consider the value and risks of the dispute in the context of the size of the vendor organisation; fully consider the interdependency of the multiple technologies which can often involve working with - and often managing - multiple suppliers.

Having checked the above key points, you will gain a clearer understanding of the key skills of the organisations. In so doing the number of potential suppliers will significantly reduce and pricing comparisons should be simpler.

Understanding the manner in which today's specialist technology and services assist the review process

The new generation of ED software has been designed - not adapted - to assist legal teams to fulfil their disclosure obligations in their review of electronically stored information.

Products now exist to facilitate the processing and filtration of hundreds of gigabytes in single days.

Functionality such as the following are now available:

• legal hold tools - helps ensure that relevant data is electronically secured and not overwritten or deleted;
• early case assessment tools - helps formulate an initial view of the data and its content, thereby focusing the review on the most relevant information;
• document clustering - helps identify relationships and themes within collections of documents;
• email link maps - helps identify volumes of communication between individuals;
• conceptual searching - helps identify similar documents/emails;
• identification of similar/near duplicate documents/emails; and
• multi-language capabilities.

This integrated functionality, if properly applied, allows a non-linear approach that greatly improves the speed and accuracy of reviewing the most relevant information in the quickest timescales.

Data collection being conducted to forensic standards

There is often a potential and substantial time lag between hardcopy documents being delivered by the client, to their review, production, exchange and finally their presentation in court. Previously, clients have been asked to supply hardcopy documents and while there will have been occasions when this may have been challenging, it has normally been a relatively straightforward exercise.

With electronically stored information it is not quite so simple. Every piece of electronically stored information contains metadata that includes information such as when a piece of data has been created, stored, amended, printed, communicated, to whom and when. This factual information is as crucial to the defence as it is the claimant. There is great potential to unintentionally change the metadata if the electronic documents/emails are not collected properly and no professional adviser would want to construct a case on inaccurate or less than full information.

If the metadata is something upon which the client and adviser may later need to rely, it is critically important that its collection is conducted to standards that will not be brought into question at a later stage. This task can rarely be conducted by the client on the grounds of either independence and/or forensic capability.

This is an area that continues to be the subject of much discussion in the US courts where increasingly only data collected by accredited experts using forensic technology and processes is accepted. The principles are just as relevant globally.

The increasing need to collect and review both unstructured and structured data

Typically litigation requires the collection, review and exchange of non-structured data i.e. emails, Word documents, PowerPoint etc. However, ED exercises are not limited to litigation; they encompass fraud, regulatory and general investigations. In these areas there is inevitably a need to review structured data i.e. corporate databases such as SAP, CRM, ledgers, bank statements, telephone records etc.

In these types of cases, the analysis of this type of data is essential. It is highly desirable to be able to detect anomalies and trends; to look at relationships between individuals, companies, transactions, countries, and to be able to view and analyse the structured data in a manner that would not be possible in its native software application. This structured data review can also often assist in determining which individuals' emails and documents are likely to be of most interest, but it has its own sets of analytical and review software and specialist skills - data analytics.

At the start of any case when discussing what data to collect and review, it is increasingly important to consider this area.

The historic approach to the review of electronically stored information is no longer adequate. ED must be addressed at the earliest stage and conducted in a reasonable and proportionate manner. To meet these standards lawyers will need to ensure a structured approach to the management of the whole exercise and take full advantage of the specialist tools and services that are now available.

Kelvin McGregor-Alcorn is a director at Deloitte and head of e-Disclosure.