All posts tagged E-Discovery

Common Oversights in Ediscovery

DontPanic

 

If you’re getting married, buying a house, or doing anything you have little or no experience in, then consulting with people who have already travelled that road and have experience to share is a good idea. In a similar way, we turn to experts for legal or business advice. When it comes to ediscovery, there are many benefits in talking to technical experts.

My knowledge of ediscovery was low 3 weeks ago when I joined Kroll Ontrack as a summer intern. On a quest to learn as much as I could, I thought it would be useful to ask the experts around me at Kroll Ontrack for some advice on ediscovery best practices and how to avoid mistakes. So here are their technical tips on how to manage ediscovery projects slickly and efficiently in the future. In this first post I will focus on what not to do. In a follow up post I will offer some additional best practices.

 Digging blindly for data

Don’t underestimate the importance of carefully considering which data sources and custodians you need to collect from and process. Ediscovery providers can provide great technology and services to reduce the amount of data that needs to be reviewed (for example, by providing Early Data Assessment services or by using keyword filters). They can also optimise the review process (by offering, for example, predictive coding technologies) BUT it is very likely that the more data you collect, the more documents you will need to review. You therefore need to make careful selections based on what you need to prove the case and meet your disclosure obligations, and always with the case budget in mind.

Cutting costs with data collection

While thinking carefully about where to gather your data from, at the same time you do you need to be as inclusive as possible when collecting data and avoid the temptation to exclude custodians simply to save money. It can be time consuming and expensive to go back and collect data that really is needed later on.

Focusing on reducing the review set at any cost

When preparing to process large volumes of data from multiple custodians, it might seem appealing to choose global deduplication over custodian deduplication simply because this usually results in a smaller document review set.

Choosing global deduplication means that some custodians’ data sets will be incomplete as duplicates from one custodian set are removed because they already appear in the set of another custodian.

It is important that the right approach is carefully considered based on anticipation of the needs of the case and future production requirements, and not simply on a desire to keep the review set to a minimal size.

Relying on Assumptions

Keep things clear! Everyone only knows what they are told so don’t cut corners. Lawyers or companies engaging with an external expert should make sure they provide all the necessary details of the case (case deadlines, procedural milestones, key facts and issues, important document / data types, what is at stake financially or otherwise) as soon as they are known.

Similarly, experts need to be clear about the assumptions used to assess data volumes and the cost of processing it. No-one should under- or overestimate expectations about data volumes and cost. As far as possible work with real metrics taken from the data itself.

Over complicating the review process

When designing your document review process, keep your category tree (the list of topics or issues than can be assigned to a particular document) as simple as possible. This directly affects the success, speed and quality of the review.

Tagging whole families consistently

When categorising families of documents it might seem sensible to categorise all members of the family in the same way – it makes sense that if an email is relevant, all the attachments should be relevant too, right?   Wrong. The chances are that only some members of the family will have relevant content and that may only be relevant to a particular issue. When you tag all members of the same family consistently you lose clarity as to the content of each individual document. It becomes difficult to collate precisely those documents relevant to a specific issue without re-reviewing documents.

 

I don’t think ediscovery is effortless – but with the right help you will be able to navigate its maze of complexities with much more ease! Like most relationships, the success of an ediscovery project and a case as a whole lies in good communication and trust between all parties involved.

Keep on Running

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To many of you, the last Bank Holiday might have been a bit of a washout; a non-event. There was plenty of rain to water the garden but not enough sunshine to enjoy any time there. In Mother Nature’s fuse box, the switch marked ‘Summer’ was most definitely turned to ‘Off’.

I expect (as seems to be the norm these days) that most people would have been checking their smart phones or tablets every five minutes, shopping around for the best weather forecast in order to decide whether to wear sandals or galoshes.

So it wouldn’t surprise me if only a few of you realise how that very same weekend was a busy junction of ‘historic events’ (I use the term loosely because some of them, as you will soon learn, are peculiar to my own experience and really just facilitate the writing of this blog).

This is what I had on my mind:

  • Sir Roger Bannister helped to celebrate the 60th anniversary since he ran the first sub-four-minute mile, by appearing at the Westminster Mile.
  • At the same event, David Weir broke his own world record by completing the 1 mile wheelchair race in 3 minutes and 7 seconds.
  • I also took part in the Westminster Mile and the London 10,000 Metres (the next day), obtaining personal best times in both races (00:06:17 and 00:52:57 respectively). (See?! I warned you!)

Whether or not you are pleased with your results, it is always important to reflect on the reasons for your performance. Personally, I can’t fathom how I managed to shave 45 seconds off my previous best mile and over 6 minutes on the 10k. I wonder if (training aside) it had anything to do with some ediscovery issues that got me….well….a little worked up on both days.

The first was the matter of a short-sighted comment that I heard during my travels through Europe in the week leading up to the Westminster Mile.

I was told by a lawyer that they would never use predictive coding technology to review documents because the DOJ doesn’t accept it. Shortly before 4am on the morning of the race, I woke in my hotel room with these words ringing in my ears. Whether the DOJ accepts it or not, I just couldn’t believe that someone would write off technology that could save time, labour and cost, without considering how they could use it to gain advantage (after all, there are many situations where it is sorely needed and it’s use does not need approval from the DOJ or any other opponent). Anyway, a quick tweet seemed to be the remedy for this bout of insomnia and feeling much better, I managed to get some more sleep ahead of the race.

At breakfast I could see from the window (instead of the BBC Weather app) that it was raining heavily and I was thankful that this would dampen the pollen sufficiently to ensure that I could run reasonably fast and still have good lung power for the longer race the next day. I was mostly keen to ensure that I didn’t exhaust myself to rule out getting a decent time in the long race.

Despite my concern, I found that the going was definitely good. I started well; I got ahead of the rest of my fellow runners and went for it. I even slowed a little to make sure that I maintained a good pace and convinced myself that I would not beat last years’ time of 7 minutes and 2 seconds. So much so that I was very surprised to hear the commentator’s voice announcing through the loud-speaker at the 200 metres marker that anyone finishing now would be just outside of 5½ minutes. After the surprise, I realised there lurked another analogy to ediscovery technology and how it surpasses expectations when proper control is exercised.

But why so fast? Was I still fired up by one person’s ignorance? Was it my breakfast (an unhealthy and calorific Full English)? Or did it have something to do with the inclusion of the Spencer Davis Group’s classic hit “Keep On Running”, the lyrics to which I had already changed in my head:

Keep on running, keep on hiding / One fine day I‘m gonna be the one / To make you understand / Oh, yeah, [I’m gonna be your] Predictive Coding man

Did my time, took my chances

The danger of Twitter is that it is very difficult to compose something intelligent and all too easy to compose something controversial in just 140 characters. I discovered this after the first race when I found that someone had vehemently disagreed with my earlier tweet.

But, where there’s danger, there’s excitement. Having clarified what I meant, I found that the excitement comes in being able to engage with like-minded people around the world, who share the same passion for improving legal practice through the use of technology. In the words of Survivor (which kept me going between the 7th and 8th kilometres on the day of the long race) “risin’ up to the challenge of [my] rival” had made me feel much better.

At the end of both races I decided that integrity, honesty and skill is what wins races (more than mild aggravation, bacon and music), which brings me to another topic that has been on my mind.

The Governor of the Bank of England recently commented that “integrity, honesty and skill” in senior managers are not optional. He was targeting the financial services industry, but I think that this is a further sign of a high-standards culture of compliance in Europe that will eventually prevail in all industries and sectors.

The key thing to take away from Mr. Carney’s warning is that if your business is going to come under scrutiny, you have an opportunity to get ahead of the probe. And if there a probe is on the horizon, you have an opportunity to get ahead of the curve to investigate yourselves. As a company you should know what your liability is early and deal with it. Which brings me back to technology, and my final plug for it –if you are worried about what the DOJ (or the FCA for that matter) have to say, then use the best technology out there to root out the problem before they knock on your door.

About Rob Jones

Robert Jones is the manager of Kroll Ontrack’s team of Legal Consultants in Continental Europe, the Middle East and Africa.

The language of ediscovery

Edisclosure, eDisclosure or edisclosure?

At Kroll Ontrack, we have a policy to write the word ediscovery as ediscovery, not eDiscovery or e-discovery.

Although this was a policy invented far from here by our marketing gurus at our global headquarters in Minnesota, it is a policy I fundamentally agree with. Ediscovery is a common noun (or mass noun, to be exact), and a common technological function, just like email. We don’t write eMail. There is no justification in grammar in capitalising the second letter. Email is defined and written as email in the Oxford English Dictionary (and ranks as one of the top 1000 used words), and I predict that it’s just a matter of time until ediscovery is similarly defined there too.

The term ediscovery has its origins in electronic discovery, just like email has its origins in electronic mail. In the same way email is now used to do much more than send an electronic letter, ediscovery technologies and processes are used to do much more than manage the process of discovery in American litigation. At Kroll Ontrack in Europe we regularly apply ediscovery technologies and best practices to cases including regulatory investigations, internal investigations, arbitration matters and of course disclosure exercises in English disputes.

In England, we have been using the term disclosure instead of discovery since the Woolf reforms in 1999, to define the process of adverse parties sharing evidentiary documents in ligation matters pursuant to the Civil Procedure Rules (CPR). Because of this, edisclosure is often used to describe the disclosure of electronically stored information (ESI). I take no issue with the term edisclosure, and in fact it is used in the title and address of this blog, but I prefer generally to use the wider term ediscovery, even in the UK. Our ediscovery technologies and expertise can be applied far wider than to assist with disclosure of ESI. Whether it is an early case assessment in Durham, a discovery exercise in the Dublin, or an arbitration matter in Dubai, ediscovery can help.

For more information about how we are helping clients in EMEA with our ediscovery technology and expertise, please visit the new European version of our rather appropriately-named website, ediscovery.com.

About Daniel Kavan

Daniel Kavan leads Kroll Ontrack’s Electronic Evidence Consultancy team in Europe. He and his team of experts advise lawyers and their clients on how to manage and analyse evidence from emails and other electronically-stored documents in legal matters including litigation, arbitration, internal audits and regulatory investigations.

All things Ediscovery

Ediscovery

All things Ediscovery.

We are really proud and excited about our new website – www.ediscovery.com/eu.

The way we have envisaged the website is that, not only is it the place to come to for “all things Kroll Ontrack”, but also for “all things ediscovery”. So, not only will you be able to find out all you need to know about our consulting services, events, people, European wide offices and products (including our Onsite ediscovery service), but you will also be able to keep your finger on the pulse of developments in ediscovery, by reading updates from experts on legal technologies via our Twitterati, current articles, blogs, case law and other laws impacting on electronic evidence.

We really hope that this website will become a central resource for you for all things ediscovery in Europe.

About Andrew Szczech

Andrew Szczech, Director of Legal Technologies Services, EMEA, is responsible for the business development of Kroll Ontrack's legal technologies business in Europe, focussing on the provision of electronic evidence services to law firms and corporates. These services include e-discovery, computer forensics and consulting which are provided in order to assist clients in multiple practice areas including dispute resolution and antitrust. Frequently, there is a need for solutions to address complex cross border data protection challenges. Andrew also manages the growth and development of global accounts throughout Europe.

Data War: Annual French general counsels’ meeting

Data War

Last Friday, Kroll Ontrack sponsored the Annual General Counsel meeting hosted by the Development Institute International in Paris. I was asked to give a 15 minute talk about data control in e-discovery, dawn raids and internal investigation. I have to say that I had no idea what level of interest the forty-something general counsel and the few external lawyers in the room would show in this topic.

As everyone knows, civil law practitioners – particularly those in France – don’t traditionally pay too much attention to ediscovery and legal technologies coming from common law countries.  To illustrate this, one of the speakers who opened the session – a special legal advisor to the French Minister for  Industry Arnaud Montebourg – explained how France and Europe completely lost the technological shift in the 2000’s by letting  US giants (such as Google and Yahoo, e) take control of European citizens’ data and earn profit from that. As a consequence, the French government is now thinking about solutions to help Europeans regain better control of their personal data and its €315 billion value, according to a research conducted by the Boston Consulting Group in 2011.

Handling electronic data is also crucial in legal and regulatory matters. This is what my talk focused on.  Taking the right steps to ensure data is handled properly is a real challenge for French and European organizations dealing with a US discovery requests or a regulatory investigation. The European data protection directive, local data protection and labour laws and blocking statutes form a complex legal framework in situations where companies and lawyers need to collect, process, review and produce data. Alongside legal measures which have to be taken, there are technological tools and techniques that can be leveraged at each stage in a project to ensure data is kept safe and laws are complied with..

Finally, I was pleasantly surprised to see good feedback and some interesting questions from the audience. Hearing from French general counsel who have experience in ediscovery was very interesting and made me become more aware of their challenges: a French company which is not often involved ia US litigation can’t control the discovery process and usually only rely on its US law firm to take the right decisions.  Does this foreign law firm really understand the local challenges and does it have a local team with some ediscovery experience? Anyway, French companies are definitely looking for more local support to be help them take control of their data and of the whole discovery process. This will primarily mean having their data managed at a local level first instead of sending y all the documents requested directly to their US lawyers. A global ediscovery vendor with local teams and local processing facilities can therefore be seen as an indispensable partner to achieve that.

About Thomas Sely

Thomas advises French clients on the management of electronic evidence and the use of legal technology in forensics investigations, compliance audits, French & EU competition regulatory investigations and dispute resolution. He is regularly consulted on the practicalities surrounding the collection, management, processing, review and production of electronic evidence, particularly where issues of French data privacy and data protection are concerned. His clients include lawyers in IP, competition, employment and litigation practices, as well as inhouse counsel, HR, and compliance and security officers in corporations.

Autumn Ediscovery News: New Solutions and Education for Companies

New Solutions and Education for Companies

We are very excited this week to announce the launch of in-country ediscovery processing capabilities in Germany and France as well as Ontrack® Onsite™, a self-contained ediscovery solution that can be deployed onsite to any country.  Many of our European clients have grappled for a long time with data protection laws that restrict data transfers in cross-border cases and increase the complexity, cost and risk associated with ediscovery. We have also seen data security and the protection of intellectual property become more important to companies as cyber attacks, data breaches and surveillance become a day to day reality.  As our President and CEO, Dean Hager notes in our press release issued on 1 October, we are addressing these needs head on with flexible solutions that allow data to be processed either in country in Germany and France, in addition to already established data centre hubs in the U.S., U.K. or Japan, or behind a company’s own firewall when data cannot leave its premises.  If you would like further information about these new capabilities you can read our press release or give us a call.

Coinciding with the announcement we are also launching a complimentary webinar programme in EMEA in which we will be examining the management of electronically stored evidence from the point of view of corporate counsel in Europe and some of key issues which arise.

In our first webinar on 8 October on Data Control: Ediscovery Solutions for European Companies we will look at how to manage company data in litigation, regulatory inquiries and internal investigations when security, confidentiality and compliance with data protection laws are of paramount importance.   If you would like further information about the event please click here and if you would like to register please email us at events@krollontrack.co.uk.

We have on our panel:

Christian Kuss, Associate, IT, Copyright and Data Protection Law, Luther, Cologne

Mark Surguy, Partner, Fraud and Investigations Group, Eversheds, Birmingham

Thomas Sely, Electronic Evidence Consultant, Kroll Ontrack, Paris

Andrew Szczech, Director for EMEA, Kroll Ontrack, London (Moderator)

The panel will be discussing the reasons clients choose to process data in country or onsite, whether that be due to data protection and privacy laws or concern about data security.  We will also be looking into solutions such as behind the firewall ediscovery solutions, in country solutions and other legal mechanisms for handling data protection restrictions on cross-border data transfers and client concerns about confidentiality.  This intended to be a practical session and our speakers will share experiences in an area where the law is often grey and client’s appetite for risk varies.

In our next two webinars we will be hosting discussions on the following:

22 October – Ediscovery – What In-house Counsel Need to Know – what companies need to do to ensure that costs, risks and response times are reduced when responding to formal demands on company information such as discovery requests in litigation, compliance checks, due diligence or regulatory requests.

5 November – The Changing Face of Data Theft – what new risks companies face due to advances in technology such as the use of mobile devices, cloud storage and social media by employees and how to respond forensically

About Tracey Stretton

Tracey Stretton is a legal Consultant at Kroll Ontrack in the UK. Her role is to advise lawyers and their clients on the use of technology in legal practice. Her experience in legal technologies has evolved from exposure to its use as a lawyer and consultant on a large number of cases in a variety of international jurisdictions.

Document Review with an Army of One?

Ralph_SearchOn 10 September we are hosting a complimentary breakfast seminar in London for lawyers and litigation support professionals on “Predictive Coding – How it’s Bringing Innovation to Legal Practice”.  We are delighted to have as our guest speaker Ralph Losey, Partner and National e-Discovery Counsel at the US law firm Jackson Lewis who will share his extensive experience using machine learning technology in legal practice. We are also pleased to have as our UK legal expert, Neil Mirchandani, Partner at Hogan Lovells in London who will be commenting on the applicability of these technologies to UK legal practice.  Although this technology is not new there is still a lot of uncertainty in the UK about how it works and which cases and which document collections it works best on.

The seminar will include discussion on scientific studies comparing human to computer review, some war stories showing how the technology has worked and the cost benefit analysis looking at a recent survey of corporates and how to control disclosure costs.  We are hoping to debate the issues that arise in the UK in relation to the use of this sort of technology and what our experience of it has been.  For those who would like to stay on afterwards, there will also be a more mechanical session and demonstration of how to use the technology with Ralph.

If you would like further information about the event please click here and if you would like to register please email us at events@krollontrack.co.uk.  We are hoping for a lot of audience interaction and you can pose questions for the experts to answer during the session by emailing us or commenting below.

About Tracey Stretton

Tracey Stretton is a legal Consultant at Kroll Ontrack in the UK. Her role is to advise lawyers and their clients on the use of technology in legal practice. Her experience in legal technologies has evolved from exposure to its use as a lawyer and consultant on a large number of cases in a variety of international jurisdictions.

Discovery, Disclosure or Both?

Budgets, Cost Management, new processes….is this train going to stop? Note that I didn’t say ‘gravy train’, as this is about understanding and better practices, and is not a money spinning exercise. Back to the point, the train shows no signs of slowing! We are still going through the evolutionary stages of implementation and understanding, although the perception is that we should all be fully competent by now.

Costs need to be looked at more closely, with the end client in mind and with a greater degree of openness. As a consequence, Budgets need to be prepared, discussed with clients and other parties, and ideally agreed upon at the onset of proceedings. In line with openness, these need to be followed closely and monitored by the parties, not only for the courts but also for their respective clients.  All of this makes good sense, not only from a client’s perspective but also one of judicial prudence. The Processes (procedures / protocols / disclosure options) are articulated in the CPR but the industry is still finding its way around them and how, when and where they should be carried out for best practice.

For the majority, the changes to our civil procedures are becoming old news, if not the minutiae of how to implement of them. Today I looked at one of my ‘Linkedin’ groups to find a full score of requests for the Precedent H document complemented by a host of negative comments.

Remove all the dos, musts, don’ts and shoulds and what you have left is a very simple message: start to think about discovery and disclosure very early on in the process (and that includes thinking about the volume of data that will be required or is available), and communicate clearly between the parties and clients participating in the budgeting process. These two things will make it much easier to deal with the costs issue generally.

It may not have escaped your astute observation that I mentioned discovery and disclosure not only in the same sentence but also as part of the same set of processes. This was deliberate. The use of these terms together may appear alien to some and  confusing. I would, however, “put it to the house” that we are developing a hybrid process under the new rules within the CPR, whereby we start early on with “Discovery” to show us what we have, in order to make the decisions as to costs, budgets and most appropriate process  for the client, followed by “Disclosure”, the review and identification of documents to be exchanged with the other parties and receipt of the same.

Edisclosure – Art or Science?

Congratulations to Kroll Ontrack for being placed in the Leader section of Gartner’s Magic Quadrant for e-discovery software.  It has been a long road and we are pleased to have made it.  You can read more about this by following this link – http://online.wsj.com/article/PR-CO-20130613-908336.html and download a full copy of the Gartner Report at the following site http://www.krollontrack.com/ediscovery-magic-quadrant.

Given my background in U.S, ediscovery and my current role as a Discovery Services Consultant in the U.K. it was my original intent to write my first blog on some of the similarities and differences between U.K. edisclosure and U.S. ediscovery.  However, following the Gartner announcement my thoughts turned towards the definition of a leader in an industry, where what we do on a daily basis is sometimes difficult to define. Add to this a friendly debate with one of my colleagues on whether our discipline falls into the school of art or science and I believe I have my first post.

I am conceding to my colleague, partially at least, because edislosure is both. At the core of both science and art are tried and tested methods that inform good decision making, whether that’s using the correct statistical model for a data sample or the proper method for the shading of scenery.  Similarly, our industry requires defensible methods that draw on both technological expertise and its artful application when it comes to using disclosure / discovery strategies and the technology available to comply with duties and win a case.

So with the recent changes to the Civil Procedure Rules (CPR) in England and Wales and the proposed amendments to the Federal Rules of Civil Procedure (FRCP) in the U.S. it is good to recognize the fundamentals of ediscovery / edisclosure and brush up on a few of them:

Start Early:  Early Data Assessment (EDA) and Early Case Assessment (ECA) are more than buzzwords. Understanding the relevant data custodians and the data types they work with early on in a case will not only help you prepare a more accurate budget for the Case Management Conference, but will help eliminate surprises. Our industry is full of scenarios such as the dreaded “closet full of back-up tapes,” or the ramshackle room full of paper the CEO keeps because he “never trusted computers.”

Start Even Earlier:  Instead of only Early Case Assessment consider Early Client Assessment. Partner with a consultative provider who can ask the right questions of your client before a case is commenced.  Does your client have a data retention policy? Equally as important: do they follow it (question IT as to whether they really do follow it)? If your client doesn’t know where their data is, help them undertake a data mapping exercise. I once discovered an entire database of relevant materials in a custom designed database because someone in the department liked to “dabble in MS Access.”

Malleability: Change is inevitable. It seems intuitive enough but planning for malleability and choosing the right technology to assist you can save time and money, potentially allowing you to stay within budget.  Whether change occurs at the beginning of an investigation when five more data custodians are added, or in the middle of productions to a regulator when a related, but previously not considered, product is now at issue, make sure you’ve asked the “what if,” questions and received the right answers early enough to plan for contingencies.

About Orion Wisness

Orion provides consultancy and training to assist clients with the identification, preservation, collection and analysis of potential evidence in document intensive cases. He advises clients on strategies and techniques to help lawyers and corporate clients deploy technology efficiently and cost effectively, as well as assisting them in the fundamentals of document reviews, the design of practical workflow processes and the selection of the technical solutions required to fulfill these goals. He is frequently called on to comment on best practices and new developments in the electronic disclosure and discovery industries.

Is E-discovery a foreign concept in Continental Europe?

On Tuesday we had the last in our European series of Kroll Ontrack webinar discussions about electronic evidence. Unlike the UK and the US, where there is a strict legal obligation for parties to disclose (often a vast quantity) of relevant documentation to other parties, such procedures in Continental Europe are very limited. This of course begged the question our panel were discussing which was: “E-discovery – is it a foreign concept in Continental Europe?”. By raising this question we were keen to find out how European lawyers think about this topic and whether e-discovery tools still have a practical purpose, or are they simply redundant outside of Common law systems?

In case you missed the webinar, you can listen to a recording of it below:

By the reaction of our participants, but also our listeners, this topic is obviously one which generated much interest and animated discussion.  Whilst no firm conclusions about the future of e-discovery technology in Europe will be drawn at this stage – some very useful insights were to be had:

Claire Bernier (Altana Law, partner – Paris) gave us some interesting examples of use of e-discovery technology for two of her cases in France, Santiago Gómez Sancha  (Director of Information Services, Uría Menéndez, Madrid) outlined both the efficiencies but also the challenges lawyers face when dealing with e-discovery technology, and Tina Shah (Electronic Evidence Consultant, Kroll Ontrack -London) outlined how technology is currently being used for cases in Europe as well as  the challenges providers face in the future.

I will not attempt to summarize the whole discussion here, but some of the general themes and salient points are set out below:

–          The main area in which e-discovery technology comes into play in Continental Europe is in terms of regulatory compliance and assessing the legal exposure of companies to regulators.  Our speakers have seen examples of both (i) preventative action: where a company decided to conduct an internal investigations for suspected wrongdoing prior to a ‘dawn raid’, and (ii) reactive: once a business had been the subject of a ‘dawn raid’ by a regulatory authority.

–          There were, however, other types of cases in which e-discovery technology could deliver results: Claire mentioned a case in which a client had to set out to prove to a Court that they had no knowledge of a particular state of affairs – which involved a detailed search for specific documents through very large volumes of data.  Tina also gave an example of how an employer had wanted to investigate the suspected fraudulent activity of an employee prior to taking action.  In both cases e-discovery tools and strategic technical advice were needed to reach these results.

–          There appears to be a market in Europe for, as Claire described it “gadget-size” e-discovery tools which can be used for pre-litigation matters as the most efficient way to obtain evidence.  Not only do e-discovery tools reduce the costs of litigation but, according to Claire, even in some cases could earn the company money by helping to improve commercial performance.

–          Santiago set out the challenge that whilst providers were in his experience technically superior to law firms and would conduct the work in the most efficient manner, law firms still find it hard to justify these additional costs to their clients.  Using e-disclosure technology was however simply the most efficient route and that ‘cheaper’ Do-It-Yourself options are not a viable solution.  It was only by using the correct tools that efficiency and results could be achieved.

–          Ultimately, according to Tina, e-discovery (a fundamentally American concept) may have been misunderstood in Europe in the sense that it should not only stand for the ‘one size fits all’ processes involved in large-scale US litigation.  Rather, in Europe, providers should give in each case a bespoke solution for the results lawyers are attempting to achieve.  Whether a firm is looking to assess the evidence before bringing forward a litigation case, or searching for a key piece of evidence within a very large volume of documents to back up their matter or investigation  – these tools are still those of e-discovery, although admittedly for a more specific / bespoke use.

Perhaps the term ‘e-discovery’ should be abandoned altogether for Europe, its application being so different from the US / UK use of the term?  As Santiago said himself there is still more education that needs to be done for clients to properly understand the benefits of using electronic evidence tools in Europe.

 

About James Farnell

Qualified solicitor (commercial and intellectual property law) with four years international business development experience following four years of legal practice. Experienced in analysis and research of new business opportunities and developing new business strategy. Excellent project and people management skills. Successful record in developing new business products and revenue streams within the legal sector.