Innovative tech solutions have become a key part of the disclosure stage of civil litigation but does this amount to disruptive tech innovation or is it more of a natural evolution?
Technology has embraced the litigation world and offers increasingly innovative solutions to litigation lawyers and in-house teams that may be tasked with gathering data. The culture of sending an email rather than having a conversation means businesses now create thousands of electronic documents on a daily basis. When litigation arises, this has the potential to translate into a costly and time consuming document review. In order to stay ahead of the curve in litigation, it is therefore essential to have an understanding of the innovative technology solutions available and how best to deploy them.
Technology has long been used by litigators for disclosure, for example, by date filtering and key word searches of electronic documents to reduce the dataset and then review platforms to speed up the review. However, early systems still placed heavy reliance on a human reviewer sometimes leading to significant costs being incurred. Fortunately, more advanced technologies already exist and are being developed each day. These include systems that can assess a document’s relevance and prioritise similar documents for human review. Others can actually review the documents themselves using artificial intelligence (without the significant cost of human review and human error and in a fraction of the time). Detailed schematics can be produced by such systems showing conversational links and email threading. Foreign language issues can also be overcome by translation functions on modern review platforms. If deployed correctly, these tech solutions can all give litigators and their clients an edge in a litigation context.
In the UK, the Civil Procedure Rules now require the parties to consider and discuss using tools and techniques to limit the cost of electronic disclosure. The new disclosure pilot applicable in certain Courts goes even further. Parties to litigation are required to consider using “the full range of tools in the analytics suite available to them”. The Courts have also specified a non-exhaustive list of analytics including email threading, near duplicate identification, concept searching, concept clustering and foreign language analysis.
Parties must now consider using technology/computer assisted review (known as TAR) tools which prioritise or code documents. These tools work in conjunction with and take account of a human review by a “senior lawyer”, extrapolating the lawyer’s judgments and review to the remaining document set in order to prioritise for or exclude them from further review.
Given that some of these technologies are new to the market and others are still being developed, it is understandable for lawyers and their clients to be apprehensive at first. Ultimately, there is now no alternative other than to embrace these new technologies. The savvy lawyer will not see this as a threat but rather a possibility to be ahead of the curve and exploit that as a tactical advantage in the litigation itself.
Five Top Tips for Disclosure:
- Pre-litigation prevention: The cost of the disclosure phase is likely to be directly linked to (a) the number of documents in the review set; and (b) the redactions required to be made to any disclosable documents. Consider issuing guidance to employees to minimise the unnecessary creation of documents in their day-to-day activities. Consider putting in place processes for ensuring documents are easily identifiable if litigation arises. For example, by marking documents/emails with a project name, using document management systems or project specific folders and minimising the use of “mixed content” emails to avoid the cost of redaction of any irrelevant/confidential content in subsequent litigation
- Document preservation and early identification of relevant documents: A duty to preserve documents arises as soon as litigation is in contemplation. Consider sending a document preservation notice to relevant individuals together with a custodian questionnaire to identify what documents are held and where they are located. Liaise with your IT function to ensure relevant document repositories are preserved
- Early engagement on the issues: Early engagement with an opponent on the issues relevant in the case is part of the new disclosure pilot but will also assist you in limiting the scope of your search and disclosure obligations. This in turn will help reduce the time and cost of the disclosure phase
- When to collect and review relevant documents: Consider with your legal advisers when is the right time to search for and collect relevant documents for review. Whilst the time required to complete the disclosure process should not be underestimated, an early indiscriminate data collection could be detrimental to your position where the new disclosure pilot applies given any searches carried out will need to be described and will engage the duty to disclose known adverse documents if any come to light
- Map out and model your disclosure process before you begin: Disclosure typically involves a large team of reviewers. To maximise the efficiency and consistency of your review, it is essential to map out your disclosure process at the outset and issue a guidance note to the review team dealing with the timetable, the issues in the case, and guidance on how to treat privileged and relevant documents.
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