The growth of e-discovery

May 03, 2019

Written By Jan Hill

The massive growth of electronically-stored information (ESI) has increased the cost and complexity of the discovery process, coined a new term (electronic discovery) and resulted in the emergence of new roles in litigation support and trial technology.

What is electronic discovery?

Electronic discovery, commonly known as e-discovery, is the process by which electronic data is identified, collected and produced, in response to a request for evidence in a civil or criminal court case. E-discovery isn’t a single action; rather it’s a process comprised of many related actions that begins when a lawsuit is imminent and lasts until documents are presented in court, should they go to trial.

Once litigation is on the horizon, parties involved have a duty to preserve electronically-stored information (ESI) that could be relevant to the matter. Lawyers from both sides of a case will define the scope of e-discovery, identify and preserve the relevant ESI, and make e-discovery requests and challenges of the opposing side. Once the limitations are set, ESI is collected, analysed and formatted for use in court.

This is a dynamic, complex process that can present many challenges to legal and IT teams. However, new developments mean that e-discovery can now be managed in a single technology platform.

E-discovery: US vs UK

The beginning of e-discovery is often traced back to 2005, when the US Supreme Court amended the Federal Rules of Civil Procedure (FRCP) to include a category for electronic records. These amendments specifically designated emails and instant messages as records that could be archived and produced, if relevant. These changes to the FRCP required civil litigants to comply with proper methods for retaining and managing ESI.

In 2015, more amendments were issued to amend further the FRCP, including the ground rules that now govern e-discovery. As the FRCP rules specify, ESI is subject to discovery in litigation to the same extent as paper records, and failure to respond properly to discovery requests can lead to dire consequences.

While e-discovery burst onto the scene at roughly the same time in the US and the UK, the countries handle electronic data discovery (EDD) differently. In the UK, where electronic discovery is known as electronic disclosure, the Practice Direction and the Civil Procedure Rules govern e-discovery. The Practice Direction requires that the parties to the litigation must discuss how e-disclosure should be carried out at an early stage in the proceedings, before the first case-management conference.

The US is considered to be the acknowledged leader in computer forensics and e-discovery for two reasons: the American legal landscape is more litigious than in the UK, and unlike in England, the loser doesn’t necessarily pay the winner’s costs.

There’s an ESI disclosure questionnaire in England that the parties can use to guide the process, and also to set the parameters for e-discovery at a relatively early stage. The questionnaire, which must be verified by a statement of truth, helps decide the scope, extent and most suitable format for the disclosure of electronic documents, and discloses electronic searches that have and have not been made. Failure to disclose can result in sanctions, and a UK lawyer can even be struck off the roll of solicitors if they were aware of the deliberate destruction or suppression of documents.

In the early days of e-discovery, companies often outsourced most duties to third parties and service providers who specialised in e-discovery work. But following the recession of 2008, many law firms and corporate legal departments were forced to look for ways to cut spending, and soon realised that they could control e-discovery costs more easily if they carried out the process themselves as opposed to outsourcing. According to Exterro, 51% of all legal departments are now performing a majority of their litigation work, including e-discovery, in-house.

There are many different electronic formats, including text, images, calendar files, databases, spreadsheets, audio files, animation, websites, email, voicemail, social-media posts, computer programs and raw data that may be sought in e-discovery. Litigators can review e-discovery materials in various formats, including hard copies, raw data, Portable Document Format (PDF), Tagged Image File Format (TIFF), and Joint Photographic Experts Group (JPEG) images.

Electronic discovery vs traditional discovery

Traditional discovery—which commonly consists of interrogatories, requests for production of documents, requests for admissions, depositions, subpoenas duces tecum, and physical and mental examinations (if applicable)—is notorious for one thing: mountains of paper. It wasn’t uncommon for lawyers to dedicate whole rooms in their firms to housing boxes of paper-based evidence.

In e-discovery, the paper is replaced by technology in terms of search, retrieval, review and production to the opposing party. Although e-discovery hasn’t completely done away with boxes filled with paper—after all, technology can still occasionally fail—the transmission of such documents is, by and large, done electronically.

When the legal world was still primarily a paper world, a solicitor could rely on clients and witnesses to provide most of the potentially relevant documents, and lawyers didn’t usually feel personally responsible for manually reviewing a corporation’s documents. The same fundamental principles apply in this new electronic world, and lawyers shouldn’t necessarily feel that they need to do their own e-discovery—there will be information custodians and IT professionals to render assistance whenever necessary.

The benefits and drawbacks of e-discovery About 15 years ago, most law firms began to embrace (or at least acknowledge) the digital age, which brought with it the discovery of electronic data. E-discovery brings with it numerous advantages and disadvantages. First, some of the advantages:

• Through automated methods, electronic documents and electronic media can be searched very quickly with a high degree of accuracy.

• E-discovery software may be capable of searching through far more documents than humans could ever review manually.

• The very nature of electronic data makes it well-suited to investigation. Whereas paper documents must be reviewed manually, digital data can be electronically searched with ease and is difficult or impossible to destroy completely, especially if it appears on multiple hard drives and digital files within a network.

• Metadata and system data provide additional information about electronic documents and computer-user actions that aren’t possible with traditional paper discovery. Now for the disadvantages:

• Attorneys are now required to devote considerable time and effort to developing and understanding new approaches involving e-discovery, despite the fact that they are experienced and skilled at traditional paper discovery.

• The volume and distribution of electronic documents can make them difficult to find.

• The complexity of new and unfamiliar technology can sometimes require computer forensic experts.

• Parties can be sanctioned for improper document retention practices based on rapidly-changing criteria.

• Since e-discovery combines both legal and technical disciplines, but isn’t typically fully addressed (if at all) at most law schools, legal professionals are often tasked with learning it on the fly.

• The high cost of e-discovery is an ongoing concern for many, but with a solid strategy and the right tools, the overall cost can be significantly reduced.

What jobs could e-discovery create?

According to a study conducted by the International Data Corporation (IDC), the e-discovery industry was worth over £7.7bn in 2015, and is expected to grow to more than £11.4bn by 2019. Large law firms and corporations may have more resources to invest in electronic discovery than their smaller peers, but e-discovery is used in ‘everyday cases’ as well.

Litigation is the legal practice area that will provide the largest number of job opportunities for lawyers and other legal professionals, particularly for those skilled in litigation support and e-discovery, according to Robert Half Legal. Large cases or those filed on behalf of a group (multidistrict litigation, or MDL) are implemented to take advantage of the efficiencies required when a large number of plaintiffs join a single lawsuit, or when many cases are consolidated in a single lawsuit under one judge. With e-discovery, duplicative discovery can largely be avoided and cases are allowed to move along more quickly and efficiently.

Here are some e-discovery roles expected to be in high demand:

• Information-systems managers create and oversee the implementation of company policies surrounding e-discovery. With input from the legal department, information-systems managers craft the necessary processes and communicate them to IT, making knowledge in both law and IT critical.

• Litigation-support directors oversee entire teams of litigation and e-discovery professionals. These directors are the primary liaisons between litigation-practice groups, in-house discovery teams, opposing counsel and vendors.

• E-discovery project managers commonly work on large ediscovery cases and use relativity and EDT tools to collect, process and analyse electronic data, as well as supporting review lawyers.

• E-discovery lawyers advise companies regarding proper ediscovery strategies and processes.

• Litigation-support specialists/analysts conduct and manage e-discovery, track data for litigation and assist the litigation-support manager.

• E-discovery specialists use technology to facilitate discovery and the management of electronic data, and most have backgrounds in both law and information technology.

• Software engineers are responsible for creating comprehensive e-discovery software that’s reliable, secure and provides efficient retrieval of case-relevant information.

• Document coders are responsible for organising the data found through e-discovery and also for inputting data and importing databases into case-management software.

Solicitors often specialise in a certain area of law, but litigation-technology professionals typically do not, and while they don’t usually need to know the law in each area, it helps to have a basic understanding of the types of cases they may be working on.

Jobs in e-discovery usually require a minimum of a university degree; a familiarity with document-management systems and trial-presentation software; a background in law or information technology (or ideally both); and strong communication skills. All tech-savvy legal professionals with a never-ending attention to detail are welcome to apply.

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