eDiscovery

Overcoming eDiscovery Failures

News reports frequently recount instances of problems arising in cases due to issues with the eDiscovery and the disclosure process, which begs the question: what steps can be taken to avoid or, at the very least, minimize the potential risk of these problems occurring in the first place? In this article, we will explore the potential issues which could arise in a disclosure exercise and best practices for avoiding them. We will also consider the ways in which clients may benefit from the latest advances in eDiscovery technology.

Potential issues and best practices.

In the author’s experience, having practiced as a disputes resolution lawyer for approximately a decade, and having had more than her fair share of cases involving a document review component, be it a High Court litigation, an arbitration, a cartel investigation, or some other form of document intensive matter, the following common issues tend to arise.

Failure to dedicate adequate time to the “strategy and counselling” phase.

More often than not, lawyers rush off to collect data from their client and begin the process of document review without taking the time to devise a strategy with reference to, among other things, the client’s mode of operation and potential data sources. Furthermore, notwithstanding the fact that the lawyers may be interfacing with the client’s internal legal counsel, inadequate attention is given to informing the client of what the process is likely to entail from start to finish. The disclosure process can be extremely demanding and time consuming for the client. A failure to allocate sufficient time to this “strategy and counselling” phase is likely to increase the risk of new data sources being identified later down the line, inappropriate technologies being applied by the lawyers due to the fact that they have not properly understood the dynamics of the client’s data, and further costs and time being incurred in fixing problems.

In order to minimize the risk of these issues occurring, it is imperative that sufficient time is spent with the client at the very outset in order to identify how they operate. For instance, the lawyers should know which jurisdictions the client operates in, how its employees communicate both internally and externally, how the client’s data is stored, and so on. Only in this way will the lawyers be in a position to effectively scope out the process and identify any potential issues such as data protection. Crucially, knowing how the client’s employees communicate should help its lawyers identify what data needs to be targeted.

Lack of knowledge and experience.

We have come across many instances of disclosure exercises being run by lawyers who have very limited knowledge of electronic disclosure, which, in turn, leads to a badly managed, costly, and indefensible outcome. This leaves the client’s process vulnerable to attack by opposing counsel, which means that even further time and expense is likely to be incurred.

It is therefore important that the client engages lawyers who are both knowledgeable and experienced. It is not enough for lawyers to simply delegate responsibility to, or rely upon, third party vendors. Those vendors will still require guidance from the client’s lawyers as they will not be in a position to perform the necessary legal analysis which is key to an effective disclosure exercise.

Liaising with the other side.

In our experience, parties tend to be reluctant to liaise with each other regarding disclosure at a sufficiently early stage or in an effective manner. This then leads to problems later on in the proceedings when expectations have not been met. Clearly, the sooner lawyers engage with their opposing counsel and notify them of how their client intends to discharge their disclosure obligations, the more difficult it will be for the other side to challenge that disclosure process at a later stage. In fact, the English Civil Procedure Rules 1998 (which apply to civil litigation in England) have a built-in mechanism for ensuring that parties engage in discussions regarding the use of technology in the management of their electronic data.

Benefiting from eDiscovery technology.

The author recently attended a demo of an “early case assessment” tool and was impressed by what this particular technology was capable of doing. Following ingestion and processing, the tool is able to tell the user a great deal about the profile of the data. Technology like this should assist clients, particularly as part of the “strategy and counselling” phase discussed above, to visualize in great detail what the data comprises in terms of file types, data volume by custodian, volume of traffic between custodians, or between custodians and third parties, and so on. This information will also help clients and their lawyers to identify themes, behavioral patterns, and potentially suspicious conduct. Having access to this level of detail prior to commencing the document review phase is likely to be of great assistance to the client and its lawyers in terms of determining next steps, including the methodology and technology that should be applied for document review purposes.

In addition to early case assessment tools, technology-assisted review (“TAR”), such as “predictive coding”, may be used in appropriate cases to identify relevant documents quickly, thereby enabling clients to prioritize the review of certain data. The English High Court’s decision in Pyrrho Investments Ltd and another v MWB Property Ltd and others [2016] EWHC 256 (Ch), in which the judge approved the use of predictive coding by the parties, will hopefully encourage parties to use TAR in the right circumstances. In our experience, predictive coding has been useful in identifying relevant documents much more quickly than traditional manual reviews. TAR can therefore reduce costs and time for the client and help it to understand its data much more quickly.

About Tess Blair and Afzalah Sarwar

Tess Blair and Afzalah Sarwar
Tess Blair and her team offer full-cycle electronic discovery and information governance services to organizations across the globe. Tess is the founder and leader of Morgan Lewis’s eData practice. Afzalah Sarwar focuses her practice on complex commercial matters involving both litigation and arbitration. She represents both public and private companies, multinational corporations, banks, private equity firms, and others in matters including multijurisdictional contractual and banking disputes, insurance disputes, and governmental investigations.

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