Overcoming e-disclosure challenges in litigation

April 2020  |  FEATURE  |  LITIGATION & DISPUTE RESOLUTION

Financier Worldwide Magazine

April 2020 Issue

E-disclosure – the process of collecting, preserving, searching and analysing electronic documents to facilitate disclosure in litigation, regulatory investigations and internal reviews – is not the sole preserve of document-heavy, high-value litigation cases.

Moreover, as the amount of corporate litigation increases, it is essential for law firms to understand this challenging and fast-moving area, as well as to implement defensible, cost-effective and efficient e-disclosure practices. That said, there are significant challenges that need to be overcome, particularly the cost of the disclosure process, which has been exacerbated by the proliferation of electronic data in recent years.

“Documents are disclosed in paper format to highlight the truth of a matter and this is also the case with electronic documents or files,” says Scott Simpson, e-discovery specialist at Cyfor. “As humans, it is our nature to want to organise, categorise and analyse documents.

“By making documents electronic, you can start to identify duplicate documents quickly, which documents contain specific terms that are appropriate to the matter and even substantiate when a document was created or even deleted,” he continues. “It would not be pragmatic to do any of these tasks with 1000 documents, let alone a large matter which can contain millions of documents.”

According to the PwC and AKJ Associates report ‘Creating a strategic framework for the future: e-Disclosure 2020’, corporate data volumes are growing upwards of 40 percent annually, with sources such as transactional data, instant messages, social networking and knowledge management sites, and audio and video recordings, driving increases in volume, complexity and variety.

Key challenges

Unsurprisingly, there are a number of key challenges that arise when preserving and disclosing relevant documentation during the litigation process. Without adequate prior preparation, e-disclosure can prove to be a huge task, and if not done properly, can incur adverse cost orders and other sanctions, as well as accusations that crucial evidence has been lost or not disclosed.

“The key challenge is always identifying the population of electronic documents to be collected and reviewed,” observes Patrick Rowan, associate director at IT Group, “then to prioritise those potentially relevant and responsive documents, in order to be able to review the documents in the shortest time possible.”

There is also the concern that the e-disclosure process has the potential to disclose privileged documents or documents containing personally identifiable information (PII). “This may be as simple as redacting visible names, addresses and phone numbers on documents,” says Mr Simpson. “There may also be meta-data – data that holds information about data – such as a file path that contains a confidential project name. A failure to deal with these issues may have a large financial and brand impact.”

Electronic efficiency

To facilitate effective e-disclosure, proper planning and knowing where and how to get hold of relevant electronically stored information (ESI) on a cost-efficient basis is essential.

“Identifying all relevant sources of digital information and preserving the data by a certified and competent individual is critical in an e-disclosure project,” says Mr Simpson. “This serves to reduce the number of electronic devices that need to be forensically imaged, as well as the amount of data that needs to be processed and imported into a document review platform.

“The workflow that is used and the appropriate allocation of resources are important during a document review project as it has a huge impact on the complexity, size and cost of the project,” he continues. “If there are 50,000 documents that are responsive to search terms agreed by the parties and there is only a team of five reviewers, is it really acceptable to give 10,000 documents to each reviewer? It may be more beneficial to revise search terms to target more specific issues using more complex parameters and aim to have a smaller set of documents to review, thereby not paying reviewers to view irrelevant documents.”

For Mr Rowan, best practice is the key to achieving e-disclosure goals. “Making use of the best analytical tools available today, such as email threading, textual analytics and conceptual searching, can enable a large reduction of the reviewable document set,” he says. “Using these techniques can reduce the time taken to complete a review and reduce costs.”

E-disclosure evolution

In a world increasingly dependent on massive volumes of electronic information, navigating this complex environment will require close attention to new technologies, such as predictive coding, in order to stay on top of e-disclosure risks and potential consequences.

“Following the first successfully contested case in the UK using predictive coding, which has set the precedence for future use of the technology, a reviewer can identify the truth quicker than ever before,” suggests Mr Simpson. “Search terms have worked in the past for vendors, solicitors and defendants to obtain relevant documents, but at the cost of also reviewing false positive and irrelevant data. Predictive coding aims to remove this by queuing what it believes to be relevant documents to the case based on the concepts contained within the documents in question.”

With technological advancement bringing new methods of communication and new types of electronic information, the litigation arena needs to respond accordingly, and answer the question as to whether it can keep up with the pace of change and embrace new e-disclosure technologies.

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Fraser Tennant