Solving the Ediscovery Conundrum – A Global Effort

The need to discover and produce electronic documents in litigation is now universal – and so are the problems. Whether it is ediscovery or edisclosure, the challenges being faced by courts around the world are the same. Between the exorbitant fees associated with increasingly complex data sources and rising sanctions against unrelentingly adversarial attorneys, the costs of ediscovery have become a global pandemic infecting the procedural systems of justice around the world.[1] A survey of legal systems across the globe reveals that while laws and rules vary, the ediscovery problems are surprisingly consistent.

The most obvious issue is the massive proliferation of electronically stored information (ESI) that has resulted from rapid advancements in communication technology. This, however, is merely the beginning of a deeply systemic problem. The challenges created by ediscovery have magnified traditional notions of legal advocacy to troublesome levels. Zealous advocacy, once the ideal form of legal representation, has revealed itself to be nearly incompatible with conducting an efficient and effective ediscovery process. Closely related, and perhaps deeply intertwined, is both the bench and bar’s general lack of knowledge regarding the complex, multifaceted process. Similar to zealous advocacy, the staunchly conservative tradition of the legal system stands in stark contrast to the fast-paced, technology driven world of ediscovery.

Technology – Fighting Fire with Fire

In the modern corporate world, technology has been both a blessing and a burden. Unfortunately, in the frenzy to develop more efficient methods to proliferate information, efforts to develop thoughtful long-term storage did not keep pace. For many corporations, the ease of creating documents is now easily offset by the challenges of retrieving and collecting the information when later requested in litigation. Despite the fact that technology has essentially created the ediscovery problem, courts around the world have nonetheless recognized it is also the solution.

In the United Kingdom, the new Practice Direction 31B (PD 31B) went into effect October 1, 2010. Among the five General Principles to be considered in the disclosure of electronic documents is that “technology should be used in order to ensure that document management activities are undertaken efficiently and effectively.”[2] Extending from this general principle are specific requirements for counsel to “discuss the use of technology in the management of Electronic Documents” prior to the first Case Management Conference, in addition to the electronic information the parties have in their control, the scope of the search for relevant documents, preservation steps taken, cost-sharing and formats for exchanging documents. Counsel is also required to discuss the use of core ediscovery technologies including software tools, keyword searches and data sampling in an effort to “reduce the burden and cost of disclosure of disclosure of Electronic Documents.”

The United Kingdom is not alone in its recognition of the role technology plays in ediscovery cost reduction. In April 2009, Hong Kong’s Civil Justice Reform (CJR) officially went into effect. Among the underlying objectives is “to increase the cost-effectiveness of any practice and procedure to be followed in relation to civil proceedings before the Court.”[3] To achieve these objectives, the Rules of the High Court (RHC) impose a duty upon the court to engage in active case management.[4] Order 1A, Rule 4(2)(k) expressly states that “active case management includes making use of technology.”[5]

In Australia, Federal Court Practice Note CM 6 – Electronic Technology in Litigation Rules (CM 6) 1.1 and 1.2(b) permit the court to order discovery in electronic format where “the use of technology in the management of documents and conduct of the proceeding will help facilitate the quick, inexpensive and efficient resolution of the matter.”[6]

Recognizing the role technology plays in ediscovery management is essential to turning the tide against rising costs. Although it is a significant step in the right direction, only time will tell how vigorously the courts will enforce the use of technology in practice.

Zealous Advocate for Cooperation

Cooperation is critical to conducting an efficient and effective ediscovery process, but fostering it remains the greatest challenge for legal systems around the world. One of the most significant roadblocks to promoting cooperation remains the strong tradition of zealous advocacy. Litigators who believe they are acting in the best interest of their clients use the complexities of the ediscovery process as both a sword and shield to gain a tactical advantage over their opponents. Exacerbating this problem is the fact that this behavior becomes even more attractive where there is a significant asymmetry in knowledge of the ediscovery process among opposing counsel.

Knowledge is power, and whether malevolent or benevolent, litigators who do not understand ediscovery are more likely to withhold discoverable documents, drown opponents with “document dumps” and even spoliate relevant information through preservation failures (of course, litigators who do understand ediscovery make take these actions as well). While no court has expressly ordered attorneys to seek education regarding ediscovery, Lord Justice Jackson (Court of Appeal, London, England) noted that “legal practitioners and judges should receive specific training in relation to e-disclosure, so that they can deal with the process more efficiently and economically.”[7]

In an attempt to address these issues, the United Kingdom has introduced the Electronic Documents Questionnaire (“Questionnaire”) as part of the new PD 31B in an effort to facilitate cooperation.[8] The Questionnaire is a detailed form that asks probing questions about what kind of data is held by the party to the litigation, what formats it exists in, the storage media it can be found on, how easy it is to access, whether it has been preserved, and what steps will be taken to search and review the data to decide what will be disclosed. While not compulsory, the document has been used by the courts. While still in its draft form, the Questionnaire was used by Senior Master Whitaker to facilitate cooperation in Gavin Goodale v. The Ministry of Justice.[9]

A similar approach has been taken in numerous other countries. In Canada, the Ontario EDiscovery Implementation Committee (EIC) has released a series of model documents to help guide litigants through the ediscovery process, including a Discovery Agreement, Preservation Agreement, Checklist for Preparing a Discovery Plan and a Proportionality Chart.[10]

Ontario has also addressed the issues of ediscovery and cooperation in its amendments to the Rules of Civil Procedure, which took effect in January 2010. Rule 29.1.03(4) requires that parties “consult and have regard to” the The Sedona Canada® Principles.[11] The most important concept advanced by these principles is the rule of proportionality. In The Sedona Canada Commentary on Proportionality in Electronic Disclosure & Discovery, zealous advocacy is argued to be consistent with the underlying goals of proportionality, in that the practice of cooperative behavior will result in substantial reductions to time and cost for attorneys, their clients and the court.[12]

Across the world in Australia, the CM 6 provides litigants facing ediscovery with a Pre-Discovery Checklist and a Pre-Trial Checklist. When discoverable documents are expected to exceed 200, the court requires the use of a Default Document Management Protocol (DDMP) and an Advanced Document Management Protocol (ADMP) for sets over 5,000.[13]

In the end, lack of cooperation inevitably results in a more complicated and expensive process for clients. Thankfully, courts around the world have begun to recognize and address this issue. Unfortunately, there is no easy solution, and solving such a deeply rooted, systemic problem will inevitably take time and persistence. Indeed, the shift on the cooperation front may not occur until clients begin mandating to their counsel that cooperation in discovery is essential in order to prevent disputes and other roadblocks that increase time spent in the discovery process, which translates into a higher bill for the client.

Conclusion

For more than a decade now, judges, legislators and legal scholars around the world have searched for solutions to the rising costs of litigation, yet the problems persist. With excessive costs from fees and sanctions quickly coming to a head and the world economy in a slump, the legal field must find a way to bend before it breaks. As some judicial systems are passing their second round of amendments and others, hoping to learn from their forerunners’ mistakes, are optimistically addressing the problem for the first time, all involved hope we are closer to solving to the ediscovery conundrum.

Note: The above post appeared in the March 2011 issue of the free, monthly e-newsletter, Case Law Update & Trends published by Kroll Ontrack. This newsletter is designed to help busy legal professionals keep pace with case law and information pertaining to electronic evidence. Subscribe and gain valuable and timely information on new ESI court decisions, as well as informative articles and tips for both the corporate and law firm audience.

[1] See Qualcomm Inc. v. Broadcom Corp., No. 05cv1958-B (S.D.Cal. Apr. 2, 2010) (plaintiff sanctioned $8.5 million for egregious discovery misconduct); see also Digicel (St Lucia) LTD v. Cable and Wireless Plc, [2008] EWHC 2522 (Ch) (defendants ordered to redo ESI search at additional cost of £2 million).

[2] Practice Direction 31B – Disclosure of Electronic Documents, General Principle 2.

[3] Hong Kong Judiciary: Civil Justice Reform.

[4] Hong Kong Judiciary: The Rules of the High Court.

[5] Id.

[6] Federal Court of Australia

[7] Review of Civil Litigation Costs: Final Report.

[8] Id.

[9] [2009] EWHC B41 (QB).

[10] Model Ediscovery and E-Trial Precedents.

[11] Ontario Rules of Civil Procedure..

[12] The Sedona Conference®

[13] Federal Court of Australia: CM 6 – Electronic Technology in Litigation.