Emerging technologies such as social networks, location based data and predictive coding are fundamentally changing the nature of ediscovery both in Australia and internationally. Delegates attending the Chilli IQ Information Governance and eDiscovery conference in Sydney earlier this month were reminded of the rapid pace of change and the likely impacts on the discovery process.
Michael do Rozario, special counsel with Corrs Chambers Westgarth, outlined recent cases in both Australia and internationally which are expected to influence litigators’ access to information. One important key change both in Australia and internationally has been judicial recognition of the role of social media, especially in employee related matters, according to do Rozario. He pointed to a December matter in New York where Twitter unsuccessfully challenged a court order to provide information posted on the social network.
Meanwhile Bronwyn Barker, an electronic evidence specialist working for the Independent Commission against Corruption, noted that the advent of more location based data meant that it was now possible to know not only the details of an interaction, the time it took place, but also where it took place Increasingly rich metadata sources – essentially data about data – are also having an impact, with many eDiscovery initiatives providing inadvertent disclosure of information, due to too little attention being paid to the content of meta data ahead of an investigation.
The arrival of predictive coding, where artificial intelligence techniques and sophisticated search algorithms are used to rapidly search large volumes of data has been hailed in some quarters as a breakthrough in the field. But do Rozario noted “I’m not sure if lawyers are aware of what is possible – ediscovery can now be really targeted and efficient.” However he cautioned that in some cases in the US the cost of using these techniques had proven to be very high. He offered the example of Gabriel Technology Corporation v Qualcomm, where predictive coding was used during the discovery phase of the case. Do Rozario noted that the bill for contract lawyers to work on the ediscovery project was US$ 391,000 where the predictive coding fees for the project clocked in at just under US$ 3 million.
While much of the conference focussed on emerging technologies, and the impact of massing volumes of data – known as big data – which could potentially prove a rich trove of insight for lawyers, speakers were at pains to remind delegates that there was a clear judicial move away from allowing so called “fishing expeditions”. Applications for discovery must increasingly be more tightly defined.
Do Rozario also outlined important international developments, including the introduction of the UK’s Jackson Reforms. He said that the UK’s Practice Directions 31B, which can be accessed on the internet, provided Australian lawyers with a “very useful tool for focussing our minds in Australia” on legal issues associated with eDiscovery.