Use of technology for discovery and disclosure in court

How you can meet your discovery and disclosure deadlines?

Despite the varying discovery and disclosure laws/ practices in different countries, with the internationalisation of business and tighter government oversight, one trend is clear: corporations and outside counsel will be challenged to collect and review increasing volumes of potentially relevant evidence for investigations or litigation. The electronic nature of the vast majority of the documents makes this a daunting task. Email and instant messaging have become primary modes of communication; even phone and fax systems are often integrated into a corporation’s network. Each potential witness or document custodian may be dealing with hundreds of email messages and other electronic documents on a daily basis. There is little that is not created, edited or saved on a user’s hard drive, on a network, or on backup systems. Virtually everything is retrievable, and is often readily available in enormous quantities.

Attorneys who specialise in large scale commercial litigation and FCPA investigations are aware of the costs and options relating to collecting and processing the documents, often referred to as ‘e-discovery’. Many attorneys however are not aware that the time and expense of reviewing the documents for relevance usually outweighs the other discovery and disclosure components. Millions of documents can be collected in a few days from just a modest number of custodians. Even with 100 dedicated reviewers, it may be impossible for counsel to review all of the potentially relevant documents quickly enough to meet the deadlines imposed by the courts or investigatory agencies. Because of the role attorneys must play in analysing documents, the review component will remain more labour intensive until computers are intelligent enough to analyse documents in the same way trained attorneys do.

Computer technology is responsible for creating the e-discovery monster, but it also provides cost-effective solutions for managing raw data. There are several technological solutions to help attorneys speed their review and control associated costs. By leveraging computer technology, attorneys can work more quickly and efficiently and move beyond traditional linear reviews where every document must be examined independently. Although many attorneys are uncomfortable trusting new technologies and workflows, this hesitancy is weakening: attorneys are feeling the pressure from corporate clients to use technology and other means to keep costs down, and are becoming creative in utilising non-traditional ways of doing things. Furthermore, courts and government agencies are aware of these options, and expect that counsel will understand how to utilise them to ensure that discovery and disclosure deadlines are met.

• De-duplication: Collecting raw data from email servers, hard drives, and backup tapes results in large volumes of identical documents. Computer technology can determine which documents are identical, and then ensure that the attorneys do not spend valuable time conducting redundant analysis of identical documents. This also helps to prevent inconsistent analyses of identical documents by different reviewers. These automated de-duplication methodologies are defensible and have become commonplace.
• Near-duplication: While attorneys review non-identical documents, they may find that many documents are textually similar. Examples might be reports that are updated and sent to key witnesses every week. Rather than reviewing these non-identical but overlapping documents, attorneys can now group similar documents for a faster, more efficient analysis, and consistent treatment.
• Conceptual Similarity: Non-identical documents that do not qualify as ‘near dupes’ may still be similar conceptually. The documents can be organised for review into conceptual clusters to enable the legal team to organise categories for review and prioritise the order of review. The attorneys will also be able to review these similar documents more efficiently when they are grouped together.
• Message Threading: Email messages can be grouped for review by threading relationships, ensuring that attorneys can review all of the related messages efficiently in the overall context of the entire conversation.

Creating workflows to take advantage of sampling techniques will also enable counsel to reduce attorney time and costs associated with document review. Once documents have been organised into sets of highly similar documents, the attorneys can then analyse representative samples and apply treatment decisions down to the larger set of related documents. Thus, meaningful decisions for a set of similar documents can be made effectively and quickly based on close attorney examination of a small number of exemplar records.