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Lawyers call for clarity on e-discovery – and training for judges

With the amount of electronic evidence growing rapidly in litigation cases, a survey by KPMG Forensic amongst 100 litigators in 22 leading UK-based law firms has found that there are widespread concerns about ambiguity in the e-disclosure rules, and that 50% of those surveyed believe judges and masters should be trained on the difficulties routinely faced in an e-disclosure exercise.

The research, carried out on KPMG Forensic’s behalf by Ipsos Mori, found that overall 48 percent of those surveyed believe that judges and masters are ill-equipped to make effective e-disclosure case management decisions.  Amongst those litigators more heavily involved in e-disclosure, this rises to 71 percent.

In addition, over two thirds (68 percent) of those surveyed support the establishment of an independent body of industry practitioners to promote best practice and training in dealing with the disclosure of electronic documents.

Two years on from the anniversary of the Civil Procedure Rules (CPR) which laid down guidelines on e-disclosure in litigation cases, only 17 percent of lawyers believe that they have had a positive impact.  Nearly a half (43 percent) believe that the rules have not had a positive impact, and almost six in ten (56 percent) believe that the rules have led to increased costs in conducting litigation.

According to KPMG’s survey, nearly half (48 percent) of e-disclosure cases cost £500,000 or more, with over a quarter (26 percent) costing more than £1 million.

A possible contributory factor to these high costs, KPMG Forensic suggests, could be that the two sides in a litigation are not meeting early enough – or at all – to discuss e-disclosure issues.  Despite encouragement in the CPR that both sides of a case should cooperate on e-disclosure, nearly four in ten respondents (39 percent) admitted that they had never met their opponent to discuss it.  Of those that had met, in nearly a third of cases (29 percent), it was not until or after the case management conference.

The most common suggestions from lawyers for improving the e-disclosure process are to obtain more clarity and guidance on the CPR rules, and to restrict the types of documents or information disclosed , or the cases in which the CPR e-disclosure rules apply.

Litigators typically regard business emails, word documents and excel spreadsheets as the most important types of document for electronic disclosure.  However a range of other documents including databases, audio files and personal emails are also considered important.  Perhaps surprisingly, text messages are not widely regarded as significant.

Commenting on the report findings, Paul Tombleson, Head of Forensic Technology at KPMG Forensic, said: “As electronically generated and stored information continues to proliferate, lawyers have expressed some clear concerns that the rules have not kept pace with the reality of the modern business world.  E-disclosure can be immensely complex, costly and challenging, and litigators have called for renewed energy in agreeing clearer case management guidelines.  Many of them also clearly believe that some training for judges could be beneficial.

“Technology may have created the problem, but technology can also be part of the solution.  Lawyers need to be aware of the tools that exist to help them manage the information load, as well as devise review strategies to make the task easier.

“E-disclosure, as technical as it may seem, is in many ways at the heart of the modern litigation process, so it is clearly of great importance that the issues lawyers have raised here are debated, discussed and acted upon.”

Among some of the other findings in the report…
• 51% regard instant messaging records as being important in the e-discovery process
• 63% consider audio files important
• 70% said they would look to third-party suppliers for concept mapping tools
• 10% said they had never consulted with an IT specialist in any case
• 75% said they would consult with specialists in their own firm
• 33% said they would consult with a specialist at the client's organisation
• 71% believe judges are ill-equipped to make effective case management orders

The report goes on to conclude…

The experience of practitioners tends to suggest that the existing rules on e-Disclosure are by no means perfect. Practitioners are coping with a comparatively new framework to deal with ever expanding volumes of electronic material. Difficulties will inevitably be encountered on that journey. Costs are clearly a legitimate concern and practitioners are calling for greater clarity in the interpretation of rules in the hope of achieving greater consistency and predictability.

For the reasons already outlined in this report, it appears that there may be limited opportunities for Judges and Masters to provide definitive case law guidance. Many practitioners also doubt that Judges and Masters are sufficiently equipped to make effective e-Disclosure orders.

A majority of practitioners also seem to favour the formation of an independent body of industry practitioners. Such a body may have a role to play in terms of training the judiciary to assist them to make more effective e-Disclosure Orders, and to promote good practice in dealing with electronic documents. It is to be hoped that such a body emerges, perhaps through the recently suggested formation of an English counterpart to the Sedona Conference Working Group.

A copy of the full report (a 24 page PDF) is attached.

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