Comment: Overcoming eDiscovery Failures

News reports frequently recount instances of problems arising in cases due to issues with the disclosure process[1], which begs the question: what steps can be taken to avoid or, at the very least, minimise the potential risk of these problems occurring in the first place?

Here, we explore the potential issues arising in a disclosure exercise and best practices for avoiding them, as well as the ways in which clients may benefit from the latest advances in eDiscovery technology.

Potential issues & best practices

In our extensive experience of High Court litigation, arbitration and other document intensive matters such as investigations, 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 minimise 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.[2]

Benefiting from eDiscovery technology

We recently attended a demo of an early case assessment tool and were impressed by what this particular technology is 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 visualise 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, behavioural 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 prioritise 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.

Tess Blair is the founder and head of Morgan Lewis’s eData practice and Afzalah Sarwar is a senior associate focussing on complex commercial litigation and arbitration

[1] See for example the collapse in 2010 of the price-fixing trial against British Airways following the late discovery of 70,000 documents which the Office of Fair Trading had not disclosed to the defence:

[2] Practice Direction 31B – Disclosure of Electronic Documents.