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e-technology: work smarter, not harder

11 December 2018

This article is taken from December's public matters newsletter. Click here to view more articles from this issue.


The answer to disclosure, data collection and data preservation

Introduction

Despite the Jackson reforms attempting to persuade parties to move away from standard disclosure and utilise the menu of options available, reducing the consequential costs of disclosure, there has still been a reluctance to depart from that procedure and make use of the alternative disclosure options available. As a result, there is currently a potential for disproportionate expenses being incurred by deploying standard disclosure in the electronic era.

The production of documents and disclosure before the English courts have always presented a challenge; how to prove a case whilst ensuring the costs are proportionate.

Today, this challenge is as relevant as ever before. The sheer number of communications sent and received by businesses throughout a day is considerable. All of which may be disclosable in legal proceedings.

Traditional document review is one of the most variable and expensive components of legal discovery. If you are using traditional, linear document review methods, you are at great risk of increasing legal costs, achieving inconsistent categorisation decisions and missing critical documents.

The experience of finding (or not finding) relevant information has led some organisations to enlist the help of e-technology suppliers to help them:

  • routinely preserve data and devices in readiness for an investigation or potential dispute

  • revisit policies governing the use of corporately owned and personally owned data devices

  • keep accurate logs of devices and systems in use, as well as logs of users and times when they would have been users of the same. This is called a data map

  • summarily scope their data well in advance of agreeing any timetables or budgets to find and review any quantity of electronically stored information.

E-technology

As far as technological advancements go, litigation support is evolving at a rapid pace. The last few years have seen major developments in the tools to assist with the disclosure exercise. For example, litigation support databases and software can quickly remove thousands or even millions of duplicate documents and filter emails belonging to the same chain leaving only the single composite file. All of this can be done automatically, before any solicitors start to review work (which in turn dramatically decreases the costs involved in the exercise).

E-technology suppliers, such as KLDiscovery who we have worked with in the preparation of this article, provide technology-enabled services and software to help law firms, corporations, government agencies and consumers solve complex data challenges. In this article we explain what can be done from the outset of a project to insure against potentially costly mistakes.

Toolkits on the market offer features such as:

Predictive coding – this is a process which involves the review of documents using computer algorithms to return likely relevant documents based on a selection of relevant documents. This technology is a ‘supervised learning’ technology as it uses human input to ‘teach’ the system which documents (and what type of content) is relevant to various issues. Several different types of algorithm are used by different platforms but typically they are designed to identify which documents in an entire document set are most likely to be relevant to certain issues, based on the machine learning achieved by a limited amount of manual human review. More and more often, this technology is used to decide which documents will be reviewed and which will be culled from review. Far more robust, defensible, measurable and reliable than using keyword searches, predictive coding provides statistical measures of effectiveness which indicate how much of the relevant material is reliably estimated to have been found or missed and conversely how reliable it is that the culled-set contains little to no relevant material.

 

Email threading – determines the relationship between email messages and identifies the most content-inclusive massages to avoid redundant review. This can reduce a document set by 25%.

Near-duplicates – identifies and groups similar records, and highlights the subtle differences for a quicker review. For example, different versions of the same contract or amended versions of a draft set of clauses. The level of similarity is often displayed as a percentage and typically only documents above a certain adjustable threshold (80% similarity or greater) are grouped together.

 

Language identification – automatically identifies the primary language on all documents in your data set.

Pyrrho Investments Ltd v MWB Property Limited

This case was the first reported case in the High Court permitting the use of predictive coding in an electronic disclosure exercise. In this case one party had identified 17.6 million potentially relevant documents that needed to be reviewed. This figure was reduced to 3.1 million by using de-duplication but this still would have taken countless hours to review. The court therefore approved the use of predictive coding on the basis that predictive coding would allow the documents to be reviewed at a cost proportionate to the value of the claim.

Brown v BCA Trading Ltd

Brown v BCA Trading Ltd [2016] EWHC 1964 (Ch) affirms the court’s view that technology is sometimes a better alternative to traditional methods. In that case, the court ordered the use of predictive coding over the claimant’s wishes. Over £20,000,000 was being claimed with the cost of predictive coding estimates to be around £132,000 and the cost of a traditional review £250,000.

Public sector – where litigation is inevitable

Public sector organisations are intertwined with complex, sensitive data that is subject to elaborate regulations. For a public sector service provider facing legal and regulatory ills, effective planning and cutting edge technology significantly enhances the ability for such data to be stored safely and found easily.

The options that are available on the market are as follows:

Redaction with auto redaction technology, confidential information is identified and automatically redacted in a set of documents, providing legal teams with full control to review, approve or reject each electronic redaction.

Information governance – handling massive volumes of data - archive solutions allow you to gain control and management of every piece of an organisation’s information. This allows you to classify and store information more effectively and it makes it easier to identify and retrieve only that information which is relevant.

Legal hold – this is a process that an organisation would use to preserve all forms of relevant information when litigation is anticipated, having control over every document before it is modified or deleted.

Collection, processing and review - hosted in a data centre or in the cloud that facilitates smarter ways to cull, process, review and manage your litigation or investigation documents.

When is best to use e-technology?

It is without doubt that e-technology provides the solicitor and client with an ability to read cases earlier by reducing review time and therefore can assist with early settlement (as well as reducing costs significantly).

E-technology has been used to assist with large scale document reviews, arbitrations and internal investigations for large corporations and the public sector.

Steps can, and should, be taken pre-litigation. The same steps will need to be taken for regulatory or criminal proceedings, merger control and subject access requests under the Data Protection Act (or the General Data Protection Regulation from 25 May 2018), or freedom of information requests. It is therefore a sensible idea to re-evaluate internal procedures in relation to data mapping, document preservation, review and management. It will also allow the parties to comply with obligations asserted by the new Practice Direction as they will be able to show that reasonable steps were taken to preserve documentation, it will allow for documentation in their control to be efficiently disclosed and it will avoid disclosure of irrelevant documentation.

Creating an effective system for document management requires a good measure of product-based-planning. This involves thinking about how the system will be used in the future, in all scenarios. We therefore suggest that discussions are had with e-technology providers as soon as possible in order to limit any potential legal costs and mitigate any risks.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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