Electronic discovery: No longer is it just the client who is worried about what might come out of the discovery process, lawyers too are facing increased risks in the enormous job at hand.
Lawyers and their technological counterparts inside law firms increasingly complain about the mind-numbing work of staring at computers and sorting through as much as 500 gigabytes of data in preparation for litigation. But as quickly as technology is changing and improving, it can barely keep up with the increasing masses of information we produce, much more so within businesses. As the amount of data increases and lawyers are able to navigate more and more complex technologies in search of those key documents, the risks around e-discovery are also mounting.
“Are law firms rapidly trying to get their heads around what’s happening? Absolutely. Why are they doing that? For the reasons that came out in the C7 litigation,” says Paul McCann, partner and leader of the legal technology solutions division at Corrs Chambers Westgarth. The mass of data that lawyers have to grapple with in litigation where the big players are involved is considerable, says McCann, emphasising the sheer mass of documents that have to be gone through.
Putting the sheer volumes of electronic data presented to lawyers for the discovery phase in comprehensible terms, Gavin Wingfield, manager of applied legal technology in the Sydney office of Mallesons Stephen Jaques, says that if you think about a four-gigabyte micro SD card, for example, printing out that much data would be the relative weight of an Asian elephant.
All lawyers who know what is involved in e-discovery are haunted by the example of the C7 mega-litigation case last year, Seven Network Ltd v News Ltd  FCA 1062 (C7). Seven Network alleged that its pay-TV arm C7 was driven out of business by anti-competitive behaviour. The matter ended up running for five years, and was estimated to cost more than $200 million. Federal Court Justice Ronald Sackville eventually dismissed the claims made by the Seven Network.
But the case is now renowned as the worrying pinnacle of where e-discovery could be taking litigation. In the ill-fated case, Justice Sackville had to exploit the full weight of his position in the court and limit the discovery process, which he later labeled “astonishing”. “The outcome of the processes of discovery and production of documents in this case was an electronic database containing 85,653 documents, comprising 589,392 pages. Ultimately, 12,849 ‘documents’, comprising 115,586 pages, were admitted into evidence. The exhibit list would have been very much longer had I not rejected the tender of substantial categories of documents that the parties, particularly Seven, wished to have in evidence.”
He added: “Quite apart from the evidence, the volume of written submissions filed by the parties was truly astonishing … The respondents managed to generate some 2,594 pages of written closing submissions between them … The expert reports in evidence totalled 2,041 pages of text, plus many hundred pages of appendices, calculations and the like. The transcript of the trial is 9,530 pages in length,” said Justice Sackville. He joked that “I have not been idle these past nine months”.
And nor are the lawyers who work on such cases. But more than being just a huge job, the e-discovery process poses huge risks for law firms, and the lawyers within. Deloitte e-discovery expert Rob Hillard, who recently wrote a book on information management with a chapter on e-discovery, says some courts and clients are not fully aware of the magnitude of information in electronic discovery. “There is a general experience in how much time is spent to discover documents. But as more electronic documents are being created and it exists in more sophisticated forms, there is less certainly in how much work is involved in pulling out all the information. The volume and complexity of that information has grown exponentially.”
Part of the challenge in wading through the masses of data is find the relevant content, and not missing that “smoking gun”, as Corrs’ McCann describes it. Keyword searches just scrape the surface of what might be relevant, and can’t guarantee you’ve found everything.
“If you search by keyword only, you’re not doing to get everything that is pertinent. Keyword searching is a way to get a subset of the total set of documents, but they are the ones that are just most likely to be relevant. But it’s not complete,” says Carolyn Wyatt, project manager of applied legal technology at Mallesons’ Perth office.
Entwined in this risk is that the lawyer needs to watch his or her own skin. ‘There needs to be a balancing act between lawyers’ obligations on the record — because lawyers are obliged, it’s a non-delegable duty and not something you can palm off on a third party provider. The lawyer has to turn his mind to issues of relevance and then turn to the privilege claims that need to be made over those documents for the purposes of the lawyer complying with the discovery operations,” says McCann.
Lawyers have to be satisfied that the documents produced are all that are relevant to the dispute, and in order to guarantee that, he or she needs to have a certain level of involvement in the discovery process. Jonathan Burnett, legal technology solutions IT manager at Corrs, who works on the technology side of e-discovery with his duel IT and legal expertise and qualifications, says IT experts are increasingly playing a huge role in the discovery. As lawyers are obliged to satisfy themselves and the court that they have met their obligations, it is difficult to outsource that obligation, says Burnett.
Outsourcing also poses a potential risk around whether the third party understands the uniqueness of each case, says Wingfield at Mallesons. Lawyers need to ask whether they will understand the idiosyncracies of each area of the law, on top of asking how reliable they are. “We’ve got that experience [internally] an our knowledge base is critical to us … I wouldn’t want to say that third parties are no good at what they do … but finding a good third party is critical.”
Risks around keyword searching also include misspelling of names and typos in the original, says Mallesons’ Wingfield. Experience e-discovery professionals will use a variance of the word to analyse the data, and an experienced keyword search, a “fuzzy search”, will do a more intelligent and comprehensive search of relevant information. Wingfield also warns that auto correcting can pose problems as it can change the meaning of the text. This needs to be taken into account.
Deloitte’s Hillard says you can never guarantee you have all the information. But with the appropriate pre work and understanding of all the various permeations of key words, you can reduce the risk. Hillard, who is enterprise information management partner at Deloitte, says the more complex the material is, the more chance there is that there is something you’ve missed. “And if you miss something the opposing counsel will create doubts in the mind of the judge regarding what else you might have missed.”
Using lawyers to search elephant-like quantities of data also poses another problem, this time for the purchases of those services. Robert Bjornsti, vice president at AXA Equitable Life Insurance Company, told an annual trade show at the Hilton in New York recently that big firms see the labour-intensive discovery process as an opportunity to create “another profit centre”, reported Portfolio.com. The fighting words questioned the amount of time lawyers spent on discovery, with the feisty suggestion that lawyers were bumping their prices for the work.
Maureen Duffy, national practice co-ordinator of information logistics at Freehills defends the profession, saying the cost is justifiable. She puts the it down to the volume of data being dealt with, especially compared to the amount when discovery was about hard copies.
“If you were talking about benchmarking processing the same amount of data, like 10,000 documents and 10,000 documents, e-discovery and processing information and putting it into a database, analysing it and doing an electronic exchange like the court is encouraging, it’s less expensive than if you were going take a hard-copy document, try to scan it and image it, put it in the database and exchange it in a hard-copy way,” she told Lawyers Weekly. “All litigation has more information involved. You couldn’t have handled a million records in hard copy, but it comes up in electronic situations … the cost is not the e-discovery, but the volumes of information.”
Wingfield at Mallesons adds that legal professionals and clients need to get across the concept that the cost of doing it can sometimes be outweighed by the costs of not doing it. “It comes back to experience … to get things right in the first place saves you money in the long term. People pay for qualified lawyers and qualified experts, which can save you a phenomenal amount of money,” he says.
Partners and lawyers overseeing litigation often fret over whether all electronic documents actually get to the opposing side. This issue was highlighted in a US case earlier this year, in which the lawyers at large firm Sullivan & Cromwell in New York filed a suit against Electronic Evidence Discovery (EED), a Washington firm that is one of the biggest players in the e-discovery world. In the case, it’s claimed that EED “repeatedly missed deadlines, was unable to provide accurate information to S&C about when electronic documents would be available for review or ready for production, and consistently lacked quality control”. This worst-case example of outsourced e-discovery gone wrong, is reported as being the first of its kind against an e-discovery vendor, reported the New York Law Journal in January.
Deloitte’s Hillard says such an issue is a serious one for potential clients, claiming it would place the client at a disadvantage during the preparation of the litigation. “It weakens their negotiating position and their preparation time by having the risk that they can’t get to the information,” he says. “It also raises the question of whether their own side can get to the information.”
As lawyers and their IT e-discovery expert counterparts navigate the “Asian elephant” quantities of electronic data coming from their clients during a case, they are grappling with the added weight of the risks associated with that data. Experts with many years’ experience are now being urgently called for as firms and their clients gradually realise the job that lies ahead.
Like this story? Read more: