Ian Pease reviews how new technology and the impetus from the Courts is changing the way cases are investigated by lawyers.

What are “e-documents” (sometimes called Electronically Stored Information or ESI)? Look around any modern office and you will see an absence of filing cabinets, replaced (usually in the basement) with servers running the firm’s network. Very little gets printed (for cost as well as green reasons) but there is still constant communication both within and out with the organisation, with most of the crucial exchanges taking place via e-mail.

A QUESTIONING MIND

Enter the lawyer. Whereas his first port of call used to be to the hard copy project files and the filing cabinet of the project manager, now his questions will be somewhat different.

Who were the individuals involved in the project (both from our side and for other parties)? In the ‘new speak’ that permeates our lives now, these individuals are called key custodians.

What computing resources do they use and have access to? This will include all devices that could save e-documents including not only servers and laptops but also mobile phones and other portable devices.

IT’S A PROTECTION RACKET

Once the lawyer has got a clear view of the extent of the sources he has (assuming there is a potential dispute), to take them into protective custody for two reasons. Firstly, so that a proper, thorough, investigation can commence into the facts of the case and secondly, because there will probably be the need to give disclosure of some of them when ordered to do so by the Court or arbitrator. Note that in adjudication there is not the same disclosure obligation, however, there is still the need to find the key documents so that they can be deployed to further the client’s case. This need to take the documents into safe-keeping is known as ‘legal hold’.

The most convenient way in which legal hold can take place for e-documents is to take a forensic copy of the relevant sources to prevent the normal processes of destruction, archival and change taking place in relation to that data set. The clients can then continue to use their ‘live’ systems without disruption. I say forensic because great care is needed in handling e-documents, they are very easily changed and their associated ‘metadata’ corrupted. This data can often be of great use in determining who drafted, received or modified particular documents.

SEARCHING TIMES

Once that pool of documents is gathered it will be obvious that, in all probability, the set is far too large to be gone through individually. In any case, the documents will need to be sorted, reviewed and organised and that can best be done by using a specialist database.

A WINNING HAND?

The client may have felt that he was ‘holding all the cards’, but is this what the documents reveal? Dependent upon what this process throws up, the lawyer will apply the suitable law and procedure in advising the client.

INFORMATION OVERLOAD

Sorting and deciding what is relevant, is the next step.

COSTS

Why are disputes so costly to settle and what can we do about it? This is a key question in the UK Civil Justice Review of costs being undertaken by Lord Justice Jackson. A lot of the costs revolve around properly considering documents and disclosure. As I think we’ve established there is assort of “Moore’s Law” operating here, it’s not just the facility with which we e-mail one another (copying in multiple parties), it’s also the other copies that we (and our IT departments) habitually make.

This article may have various versions and back-up copies before it’s completed. Each such document, if litigation was to eventuate, may have to be considered for disclosure.

LITIGATION

Litigation used to be seen as adversarial and overall it still is, but there are parts of the process that the Courts are increasingly stressing should be cooperative; a recent case1 highlights that this has not got through to all in the legal profession. The judge in that case made the following point:

47. This case provides an opportunity for the Court to emphasise something mentioned in Part 31 Practice Direction [dealing with disclosure of documents] which the parties in the present case disregarded. Paragraph 2A.2 of the Practice Direction states that the parties should at an early stage in the litigation discuss issues that may arise regarding searches for electronic documents. Paragraph 2A.5 of the PD states that where key word searches are used they should be agreed as far as possible between the parties. Neither side paid attention to this advice. In this application the focus is upon the steps taken by the Defendants. They did not discuss the issues that might arise regarding searches for electronic documents and they used key word searches which they had not agreed in advance or attempted to agree in advance with the Claimants.

The Judge went on to conclude that the Defendant’s solicitors had not carried out a reasonable search in the first instance and that the parties’ solicitors should meet to discuss how restoration of the Defendant’s backup tapes could best be done and “Following such a meeting, the Defendants should embark so far as reasonably practicable upon restoration of the back-up tapes”. Additionally, further key word searches had to be done by the Defendants, at further costs to the parties.

The lesson from the case is evident. The Court will not look kindly upon parties that take unilateral actions when it comes to e-disclosure. In future an “e-Disclosure Technology Questionnaire” will have to be filled in and discussed at the first case management conference in UK litigation.

SUMMARY

There can be no doubt that many of the problems faced in terms of comprehending the overall merits of a clients’ case are added to by the ‘tyranny’ of the email (and other electronic documents). However, also provides solutions and benefits.

Ian Pease is a solicitor specialising in construction & engineering disputes (email: ian@peasefamily.net )

1Digicel (St Lucia) Ltd and other companies v Cable and Wireless plc and other companies [2008] EWHC 2522 (Ch).§