Developments in E-Disclosure

 

It’s February, it’s New York City, and it’s cold.  It is really cold and once again I am attending “Legal Tech” the conference that covers all things related to technology and the practise of law. Over 3 days exhibitors from very large firms such as Thompson Reuters and Lexis Nexis all the way through to start up companies offering innovative solutions to age old problems convene at the Hilton on 6th Avenue in order to educate themselves and their clients on the most recent legal and technological developments.

This year, as usual, there is strong representation from the UK with e-disclosure service providers rubbing shoulders with independent e-disclosure consultants, providers of temporary document review staff and specialist head hunting agencies on the look out for the next scalp. All are there to ensure that they are up to date on new developments available for meetings with clients old and new and of course the odd party.

Like all industries the legal technology industry tends to go in phases with buzzwords being bandied around by all participants, some years ago everyone started talking about predictive coding (the process of using computers to identify documents that maybe relevant to the dispute during the disclosure review process) some years later the conference moved on and was then buzzing with how to cost effectively manage big data and then again it moved on to how good Information Governance strategies can help to reduce costs and increase responsiveness in disclosure and discovery, and this year……..well this year nothing much has changed. We’re still talking about predictive coding, we’re still talking about information governance and we’re still talking about how to cope with big data. To a large extent it is more of the same, sure some companies are bringing out new versions of their software that is slightly better or looks different but there was nothing really new that hit me as radical and innovative. Nothing earth shattering.

I think that the organisers of the event, ALM, recognised this before the show got started. One of the keynote speakers was Jeff DeGraff (a lecturer and expert on innovation) and the event for the first time gave free space away to 10 start-up companies that were judged as providing “disruptive” technologies or services. It is as though there was a very big neon sign saying “By this time next year we want to see something NEW”.

It is this very lack of innovative new technology that is perhaps the most interesting thing about this years Legal Tech and perhaps (I hope) a signpost towards a more stable and settled legal technology industry. It is, I think, indicative of an industry that is maturing, is more sure of itself and recognises that it is perhaps more important to be really good at the basic stuff of litigation support than it is to be the new kid on the block with the most shiny toy.

That is not to say that there are not changes within the industry, which present opportunities to the legal profession as a whole and to the Bar in particular.

Proportionality is a concept that the e-disclosure industry has generally and understandably struggled with. It is after-all expensive to develop and then sell new technologies. And so, in the beginning, costs were high and it wasn’t that long ago when the price of completing e-disclosure exercise of any size was so high that it was disproportionate to conduct such an exercise in all but the highest value cases. Instead of conducting an e-disclosure exercises parties would agree amongst themselves (with the agreement of the court) to forego the e-disclosure exercises on the grounds of proportionality.

Since then costs have gradually reduced. We are now at the point where one of my clients has just had circa 750GB of data (3.9 million documents) processed, filtered, deduplicated and hosted in an online review tool for 3 months with access for 5 reviewers for less than £15,000. When you couple this with a judiciary that have become far more informed on e-disclosure and the additional guidance provided by the CPR and incredibly detailed and useful guides like the TCC protocol on e-disclosure it is now almost impossible for lawyers and their clients to sidestep their e-disclosure obligations.

Another problem for the Bar, particularly when faced with a direct access client, is how to deal with disclosure reviews. Unlike firms of solicitors who generally have a litigation support manager or a friendly independent e-disclosure consultant or someone who has been through the nuts and bolts of a large disclosure exercise before who they can call on to provide advice on about how to conduct a large review barristers are, a lot of the time, on their own. Practically speaking members of the Bar do not, generally, have large rooms available to them to house review teams in for long periods of time. And so disclosure is not an easy obligation for Members of the Bar to meet.

Advances in predictive coding are helping to overcome some of those more practical difficulties. The most recent iterations of this technology now claim that a seed set of about 1800 documents is of sufficient size to start the process of sorting relevant documents from the irrelevant documents, and not only that but also sorting relevant documents into “buckets” of documents that are relevant to certain issues within the case. This means that over the course of 3 or 4 days someone with a detailed knowledge of the case they are working on can begin the process of carrying out a detailed review of many 100,000s of thousands of documents. It is now possible to isolate the relevant part of document and say to the computers “this part of the document is relevant, go away and find other documents that speak to the same subjects as this element of this document”.  Over a series of passes similar to this the computers will produce a set of documents that are definitely relevant to the case (and identify the part of the case the documents are relevant to) a set of documents that are definitely irrelevant to the case and also a set of documents that the computer is unsure of. This leaves the far more manageable task of reviewing those documents that the computers are unsure of, whilst discounting the irrelevant ones and leaving research through relevant documents far easier.

In summary proportionality is a moving target and as the prices of conducting e-disclosure exercises reduce more and more cases will require an element of e-disclosure to be completed for them to be concluded.  Lawyers have great advice and guidance available to them (in particular the TCC protocol which provides excellent advice to all lawyers regardless of whether they are operating in the TCC or not) to enable them to be sure that they are following best practice and the practical difficulties that the Bar face with regards to conducting document reviews are also alleviated (although not completely removed) with the advent of sophisticated and less burdensome predictive coding technologies allowing barristers to combat very large review tasks relatively easily and relatively cheaply.

E-disclosure remains a complex and potentially difficult area to get on top of but technology and advice are available to enable all lawyers to successfully negotiate it’s sometime murky waters.

 

By Mike Taylor, barrister

i-Lit Paralegals

E-mail: info@i-litparalegals.co.uk
Phone: 01748 810221


 

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