Thomson Reuters E-Disclosure Forum report

Our associate editor Joanna Goodman reports on Thomson Reuters’ Sixth Annual e-Disclosure Forum, which was held on 15th November in London. This year it focused on Practice Direction 31B (PD31B) and the Electronic Documents Questionnaire (EDQ) and examined global trends in e-disclosure. The panels featured many well-known names in e-disclosure, some of whom were involved in drafting PD31B and the EDQ. Chris Dale of the e-Disclosure Information Project, Browning Marean of DLA Piper LLP and George Socha of Socha Consulting who also chaired the sessions.The right directionPD31B and the EDQ provide parties in multi-track cases with a structure for agreeing in advance what electronically stored information (ESI) should be disclosed to the court and using the appropriate technology to identify and collect relevant information. The discussions concentrated on best practice – and a practical approach based on the collective experience of the panels. Judge Simon Brown, Vince Neicho, Master Steven Whitaker and Mark Surguy examined what PD31B and the EDQ mean in practical terms. Apparently, some lawyers and their clients still talk about printing everything, but data volume means that this is simply not practical. The panel emphasised the difference between the old process, which was to disclose everything, and the new one, which is designed to deliver to the court only the documents that really make the difference. Judge Simon Brown, who presided over Earles v Barclays Bank Plc [2009], in which Barclays was penalised for e-disclosure failures, emphasised that the judge is the end user of the e-disclosure process, the purpose of which is to identify and disclose the information relevant to deciding the case. “Just because there is a lot of evidence doesn’t mean there has to be a lot of disclosure,” he explained, citing a recent case where his judgement was based on just five key documents. Effective e-disclosure had identified the “killer” document – the one that decided the case – and the case was expedited because the judge didn’t have to go through everything. This demonstrated how effective e-disclosure delivers results and saves the courts and the parties time and money. In Judge Simon Brown’s case, when the losing party suggested that the disclosure process hadn’t been completed because so few documents had been disclosed, he confirmed that the deciding documents were sufficient to confirm his judgement. Early co-operationThe practice direction requires early stage cooperation during which the parties should agree the scope of disclosure. This enables them to decide which documents need to be exchanged and how they should be identified and collected. It therefore places more pressure on case management. Judge Simon Brown observed that judges will need to take a more active role at the outset. Master Steven Whittaker explained that the practice direction and questionnaire give practitioners and the judiciary a roadmap to help them manage cases more actively and decide what sort of searches should be conducted. They require each party to identify the documents that support their case, who has them and what form they take. He added that 95% of cases do not reach trial and this is partly because a proper disclosure exercise has been carried out and the parties have decided on a settlement. Document management affects the outcomeVince Neicho, litigation support specialist at Allen & Overy, emphasised that effective e-disclosure was a by product of good document management, and could affect the outcome of the case. “You need to know what your client has – good and bad – on day one so that you can negotiate from a position of strength and knowledge, he said. “You need to find out what you need to do in addition to your obligations under the Practice Direction to collect the documents that you are going to disclose and how much this is likely to cost.” As Neicho observed “E-disclosure is also a risk assessment exercise – every case is fought on its weak points. The purpose is to get to the heart of the matter as quickly as possible.”The judicial perspectiveThe discussion turned to the judicial perspective and Lord Justice Jackson’s report which majored on the need for better case management and scoping out e-disclosure in a proportionate way.  This involves deciding the extent of the search at an early stage. As Mark Surguy, legal director in the dispute resolution and litigation group and head of fraud at Pinsent Masons, observed, PD31B is a template for appropriate and proportionate e-disclosure. Ask the right questionsJudge Simon Brown underlined the importance of asking relevant questions at the case management conference:    •    How many documents do you think the case will involve?    •    Is there a written contract?    •    How far can you limit disclosure? Parties may then be able to mediate or settle; however, a fraud case may require disclosure of all documents and the metadata too. Identify the issuesIt is crucial to identify the issues at the outset – although they may change after disclosure – if you are to get to grips with the case and the costs. Judge Simon Brown observed  that in Earles v Barclays Bank Plc [2009], more focus at the start of the proceedings would have saved time, effort and cost. Discussions followed around the application of the questionnaire, how to identify a case that warrants its use, and who should sign the statement of truth. Emphasis was placed on teamwork between legal and IT.Understanding clients’ systemsSurguy observed that although information management has changed beyond recognition, litigators’ obligations to their clients have not, so practitioners have to up their game in terms of understanding the technology. If you don’t have a Vince, hire an expert!Some firms employ experts like Neicho – who apparently is so well known that litigators have coined the phrase, “But we don’t have a Vince!” However they can hire in expertise. The central point is that technology is no longer an option; it is a requirement, so everyone needs to be confident in using it. A judge-led legal hold?It has been said that the practice direction and questionnaire represent a judge-led legal hold, in that parties need to establish at the outset what information they have and how they plan to identify what is relevant, collect it and disclose it. Master Steven Whitaker underlined lawyers’ duty to remind their clients not to destroy documents; however, the purpose of the early stage meet and confer is to discuss the preservation of ESI, because companies often routinely destroy ESI. Surguy agreed that it is crucial to understand clients’ records management and document retention and destruction policy and establish whether relevant documents and emails are archived. He referred to the sanctions applied in Digicel v Cable & Wireless [2008] in relation to the spoliation and deliberate removal of documents. The panel turned to the requirement for documents to be presented in native form. Neicho commented that this applied only “where reasonably practical”, adding that lawyers were not required to give the opposing party search functionality and documents could be converted to paper or .TIF files. Another option is to retain documents in a state of readiness for legal hold by routinely running data cleansing software that removes all embedded metadata. The same approach applies to document retention: there is nothing wrong with destroying or stripping documents unless a legal hold has already been applied.Keeping recordsIn the third session Browning Marean led a discussion on issues around data preservation and collection. He likened lawyers to exotic particles in physics: they act differently when observed! Apparently one US judge asks lawyers to videotape their meet and confer sessions, so that if they don’t agree on the scope and extent of e-disclosure he can watch the discussion and help them find a solution. He has not needed to watch one session. Marean referred to the Electronic Discovery Reference Model and the use of records management technology to ensure that companies are well prepared in the event of a legal hold as well as assisting at various stages in the process. Matthew Davis, litigation support lawyer at Hogan Lovells, commented that although sophisticated search engines work well for day-to-day use, they do not handle mass searches as effectively, and recommended using a specialist provider for large-scale search and retrieval. Marean acknowledged that social media, instant messaging, cloud computing – represent a challenge when it comes to harvesting data. In particular, postings on social networking sites represent a significant challenge as they are hosted on a third-party repository. Social media policies are an emerging issue. Many companies used to ban Facebook, but now that businesses are using it for viral advertising etc, they cannot ban its private use from company PCs. The central message related to lawyers’ obligation to remind clients of their preservation obligations in the event of a legal hold. In the US, the courts would expect the client’s IT function to apply measures beyond the end user. Litigation hold applications avoid any doubt about when preservation obligations applied. The panel agreed that it was worthwhile for “serial litigants” to set up a litigation hold committee comprising represents of IT, records management, in-house and external counsel. The discussion moved on to the collection of “forensically sound” data and examined approaches ranging from simply copying and logging the data to creating exact copies on a secondary system. Allen & Overy, DLA Piper and Hogan Lovells use external specialists for data collection, partly for efficiency, but also to avoid the possibility of their staff being asked to testify.Technology developmentsThe practice direction requires the use of technology for e-disclosure and the last session of the morning looked at some of the latest tools. As moderator George Socha put it, “Technology got us into this mess. Will technology get us out?” Ted O’Neil of EMC/Kazeon explained that effective e-disclosure requires two sets of tools: internal search tools to locate the information and external tools to analyse it. Laura Kibbe of Epiq gave an example of the latter, describing how IQ Review prioritisation software combined manual and automatic analysis. It requires a lawyer to review a sample batch of documents, and divide them into relevant and irrelevant, focusing on the borderline ones. The technology automatically applies this learning to the rest of the documents and produces a prioritisation score. So the first part of the process is traditional and the rest is technology. It found a relevant document every 17 minutes as opposed to every few hours using manual review. Recommind, Kroll, Clearwell and other products apply ranking and predictive coding. As Bill Onwusah, manager of Hogan Lovells’ litigation support department, observed, the practice direction reflects a change in firms’ approach. “There used to be clear division of labour between lawyers and geeks. Now lawyers and IT need to work in partnership to identify the issues.” Part of the challenge is to help users become (more) comfortable with the technology. Proportionality was especially important for managing the cost of e-disclosure. Apparently in the US parties are avoiding litigation because of prohibitive costs and turning instead to alternative dispute resolution (ADR). Surguy sees this as a potential difficulty in commercial cases where clients are looking for a clear result. The early cooperation required under PD31B controls costs by narrowing the field of e-disclosure, and effective search and retrieval saves time and money, as does the ability to recycle information at different stages in the dispute. It can also help lawyers produce a more realistic cost estimate at the outset. Looking to the future, the panel raised issues around cloud-based e-disclosure, notably about negotiating service level agreements (SLAs) with cloud providers which included getting the data back in an appropriate format – for example, if it comes back in a huge PST, additional expense will be incurred – as well as the expected data security concerns. The forum went on to discuss the relevant cases in greater detail as well as the risks and benefits involved in e-disclosure. Although the technology discussion didn’t offer as much variety as some of us had anticipated, it seems that the new regulations are already driving closer cooperation between law firms and the businesses they represent and that the courts are looking to IT departments and vendors to play a central role in delivering a practical and efficient way of handling complex commercial cases.