Recent case law has highlighted the increasing importance of electronic discovery in court procedures – not an area lawyers are traditionally comfortable with. Sally Butt and Alex Dunstan-Lee offer tips for the technophobic

Getting to grips with the disclosure of electronic documents is crucially important for every litigator.
E-discovery is more than just a buzz phrase; it plays a key role in many cases. When done properly it can be the key that unlocks a case, and can save significant time and costs for your client. When done badly it can have disastrous consequences.

Recent case law provides lawyers with a simple message: every party must give proper consideration to e-discovery or face adverse consequences if they do not. In this article we look at the basic rules, the new case law and provide some practical tips. We also ask the following difficult question: what do you need to know about IT to be a good litigator?

The courts

In Digicel (St Lucia) and others v Cable & Wireless and others, the court indicated for the first time the practical approach it will take to e-discovery and the sanctions it is willing to make against those that fail to understand their obligations. In that case, Mr Justice Morgan ruled that the defendant had failed to comply with its obligations. Despite the fact the defendant had already spent a significant amount of time and money on e-discovery, it was ordered to conduct further searches at considerable cost.

The defendant was criticised for failing to discuss and agree an approach to e-discovery with the claimant before commencing its search – they had made "unilateral decisions" independent of the other party. Additionally, they failed to agree with the claimant in advance the keywords used to search the electronic documents. The court analysed the keyword searches to see if they were adequate. The defendants were also ordered to search back-up tapes. Not in itself novel, but the judge made the direction having considered the evidence produced by the defendants and the quality of it.

In the case of Abela v Hammonds Suddards, the judge considered the issue of e-discovery and gave practical directions for the parties to further address the electronic searches carried out. Abela reinforces the key lessons in Digicel that the court will:

• recognise the potential value of an electronic search; in other words, it will not order a search that is unlikely to reveal anything;
• not require a costly 'no stone unturned' approach; and
• ultimately decide what is reasonable, not the solicitors. It has the ability to make sanctions if requirements not fulfilled and consider tools such as cost-shifting to fulfil the requirements of reasonableness and proportionality.

The emphasis from both cases is on putting aside litigators' adversarial tendencies and co-operating early on in a case. If not, your client could face costly directions such as having to repeat a search.

What do you need to know about IT to be a good litigator?

While the rules on e-discovery are straightforward and the guidance in the case law fairly clear, the fact remains that many lawyers are uncomfortable with technology. Even now some senior partners are almost defiant in the face of technology, both dismissive of it in their work and proud of their lack of knowledge of it.

In Digicel, lawyers and their client were rapped on the knuckles for not getting to grips sufficiently with the technology considerations involved. But does this mean every lawyer needs to become an IT specialist?

Lawyers are involved in many areas of work where they would not consider themselves a specialist. They draft in the appropriate support as the situation requires. In some ways technology is no different. No-one is suggesting that lawyers need to be familiar with the technical details behind all the technology with which they interact, nor with technology aspects that may be involved in the substance of their casework.

However, there is an argument that e-discovery is different. The technology in question is technology which is at the heart of every business. As ubiquitous and mundane as paper, these are the tools through which business is done and documented. In any commercial legal matter (whether a dispute, investigation or M&A deal) the key legal information is likely to have started life electronically and to have moved through an electronic cycle – whether it is an email, a tweet on twitter, an accounting system, or a sales database. Not having a basic understanding of how this information is stored in a business would be akin to, in the paper world, not understanding how an alphabetical filing index works.

Because of the prevalence of electronic data and the fact that it has taken over from paper as the most essential business tool, our view is that, while lawyers do not need to know the technical details of every form of electronic data, they do need to be able to engage with these concepts. At the most basic level, this means being aware of the different sources of potentially relevant data, and the basic IT infrastructure.

Some tips for best practice

It is not possible here to cover every aspect of e-discovery best practice. Adopting a practical, well-managed approach to the disclosure of electronic documents will help ensure you or your client is not subject to unnecessary costs. Our top tips include:

Planning

The key to all things e-discovery. Give yourself time by thinking early on about every stage in the process. Things will undoubtedly change but you will be ahead of the game and more likely to avoid problems. The issues involved in all our remaining tips should all be considered and documented as early as possible.

Discuss and co-operate

This may involve exchanging information about preservation of documents, searches, categories of documents in a party's control and the IT infrastructure. Parties are also obliged to co-operate as to the format in which e-discovery documents are to be provided on inspection.

Think carefully about backup tapes

When it comes to backup tapes it is not simply a question of whether to restore or not. Frequently, the tapes will be poorly organised and some simple checking upfront will help to avoid tapes being unnecessarily restored.

Checking which individuals have access to which areas of the IT infrastructure will help inform the lawyers as to which tapes might be relevant. It may be necessary to catalogue the tapes (i.e. get the basic information about what is on them without restoring them) to check that they are what the IT department thinks they are.

You may not need to do a full restore to get the information you need from the tapes and, therefore, dealing with them might not be as expensive as you think. Consider the options and document the reasons for the actions you do or do not decide to take.

Be flexible in your approach to processing and review technology

Every case will be different and the market for e-discovery tools is still relatively immature. There is no tool on the market that can handle every situation or which will be the most cost-effective in every case. Do not dismiss the cheap or even free-to-use tools that exist for carrying out simple searches across electronic data. Likewise do not dismiss the tools that may sound initially expensive but whose functionality will achieve vast legal review efficiencies.

Talk to someone with experience of a range of tools. Try to make your methodology the driver and find tools to fit the way in which you think the matter should be managed. Don't get blinded by the technology. There are some very clever tools out there but the methodology is more important than the technology.

Get as much transparency over the process as possible

Ensure that you understand exactly what is happening to the data and about how it is being culled and de-duplicated in detail. These are not simple processes and tend to lead to anomalies and discrepancies.

Consider sampling

This can be an excellent way of ensuring that the most appropriate methodology (culling and searching techniques) is applied to the larger set of data.

Lawyers can feel bewildered by the different forms of data but a comprehensive list can be surprisingly small, even when you include portable media and the various forms of internet and voice communications. Add paper to that list and you have a starting point for any lawyer thinking about where useful or relevant material might be in connection with any case. The lawyer should open the dialogue with the client on day one – using appropriate IT support.

Lawyers have no alternative but to get to grips with e-discovery. The time has come for lawyers to stop thinking 'in paper'. We must now think 'in data' and, over time, gain a natural sense of what is proportionate electronically speaking.

The basics: what the rules say

• Disclosure means stating that a 'document' exists or has existed. Each party then has a right, subject to some exceptions, to inspect it. Disclosure is usually on the standard basis. That means, under Rule 31.6, the documents on which a party relies; documents which adversely affect his own or another party's case; support another party's case; or documents a party is required to disclose by a relevant practice direction.
• The meaning of 'document' is set out at Rule 31.4. A document is any record of information. An electronic document can be anything from a soft copy document, such as those created in Word, Excel, Powerpoint to emails and text messages. Any recordable digital form of data could be a searchable, discloseable document.
• Under Rule 31.7, the parties are required to carry out a reasonable search for documents. What constitutes a reasonable search is fact-specific. It depends on the size of the case, the number of parties involved, the value, the number of documents involved, the costs, the issues and the likely relevance of the documents which might be revealed. The watch word is proportionality.
• The Practice Direction to Part 31 gives guidance about how parties should approach the disclosure of electronic documents. The emphasis is on the broad definition of document. The search should consider back-up and storage systems. Parties are encouraged to set aside their adversarial tendencies, cooperate and discuss how best to approach e-disclosure early on in a case. The purpose is to assist the judge in making appropriate directions.

Sally Butt is a partner at Addleshaw Goddard and Alex Dunstan-Lee director at KPMG Forensic. The role of IT in the modern law firm will be discussed at Legal Week's annual Strategic Technology Forum. For more information visit www.strategictechnologyforum.com