Messrs Charlton and Lavy make sound points with regard to poor execution of e-disclosure, and make some sensible suggestions as to how this can be avoided in the future in their article (E-disclosure, Needles and Haystacks, Vol 18, Issue 1). It is regrettable that anyone should have to wade through such a large number of documents with little or no notion of the contents of a database. It is understandable that the overall tone of the article is somewhat negative as it springs from such an experience. However, let us start where the gentlemen end, and say that when performed properly, with good advice and support (and a liberal sprinkling of agreement from the parties from the outset), e-disclosure is an extremely helpful tool for both claimant and defendant.
As the authors concede, e-disclosure is a relatively new phenomenon and guidelines have only recently been set out by the LiST group for its use. There will inevitably be a period of bedding in while firms gain invaluable experience of the process, both through successful ventures and – as in the example – of unsuccessful ones. As Messrs Charlton and Lavy suggest, if a firm has been on the receiving end of poorly constructed e-disclosure they may be more likely to be more diligent in providing it to others in the future. “Do unto others…”
Underpinning Good Working Practice
The authors are right in to point out that it is ‘noteworthy that the costs paid to the consultants for their document handling exceeded the costs incurred by the solicitors by a factor of about five.’ This is illustrative of the first of two of the current major problems with e-disclosure (and indeed any software-based legal procedures) : the misplaced notion that the technology can replace all of the work that was previously done without it. The idea that a piece of software can do the work that a brace of lawyers previously undertook inevitably culminates in a high dissatisfaction factor on all sides. The costs mount because someone still has to do the work, the software is blamed because the costs mount, the consultants are demonised because of the money they have been paid in a supposedly cost-effective ‘solution’ and the receiving party ends up with the large and unmanageable bundle as described in the article.
The guiding principle by which software should be employed is that the technology must underpin an already successful working practice. Despite the promises of many providing the less reputable products on the market, it cannot and is not designed to do an electronic review of documents. It can only help to cut the time taken to do the necessary work of a reviewer. As pointed out, a keyword-based search will not produce a 100% reliable set of results for all the reasons cited. Additionally, there is often a misconception that documents that have been scanned and OCRed (the text of the image has been Optically Recognised and forms part of the data attached to the document in question using one of a host of products available to do so) will provide a sound basis for such a search. However, the best OCR engines can give a maximum 95% success rate for such text extraction, and that is absolutely dependent on the quality of the original. A search of any OCRed text can at best be a guide as to what else to be looking for. It is certainly not an unhelpful procedure, but its limitations must be admitted. The same can be said of the searches described in the Charlton and Lavy article of metadata and the text body of electronic files – they are not unhelpful if their limitations are recognised and accounted for.
Refuseniks
Quite on the other end of the legal IT spectrum lies the other major problem: a strong and wilful reluctance shown by many to embrace it. It is quite understandable that, given the sorts of issues reported in the Charlton and Lavy article, there remain many in the legal profession who refuse point blank to exchange the quill for the mouse, as it were, but this increases the costs significantly when software is being used as well. If the software is not embraced by all, the efficiencies are negated almost entirely because the work is being done twice. Often, due to a small number of refuseniks, a whole bundle of documents is printed out from a set of Tiffs that was scanned in from a hard copy in the first place.
Consultation
Messrs Charlton and Lavy point out that a large proportion of the issues that occurred in the case in question could have been avoided by appropriate consultation at an early stage. They are specifically talking about meetings between the lawyers and the protagonists to get a realistic handle on the relevant material in the case. Thus a structured case is created from the start and makes disclosure structured as a result. This top-down approach is resolutely sensible, but it could be added that similar consultation between the lawyers and the ‘document consultants’ at an early stage would also have been equally beneficial. A wise consultant could have advised such an approach precisely because of the reasons given above: the technology alone is not a replacement for anything that worked before it came along. Without the human input into the structure, a bottom-up approach is the only one possible. And we have seen the results of this.
Receiving Disclosure
By extension, the fact that technology cannot work alone in providing disclosure means that it cannot work alone when receiving it, of course. If the answer to a structured disclosure is a large herd of lawyers scrutinising the documents late into the night, it follows that it is necessary for the defendant to do the same if the defendant is to rely on the findings. What the technology can do is make the number of late nights fewer, and save money on coffee (as well as billed hours). Additionally, the work during those late nights should be made easier.
The Right Approach
Ultimately, technology should enable lawyers to catalogue, load and structure data so that it can be searched, foldered and manipulated to advantage. A good technology supplier will ensure that it becomes part of the project/case/legal team and is involved in discussions on how the lawyers want to order their data, load it and store it. More importantly, the supplier should be able to provide sound advice on the best way of doing this to meet the requirements of the lawyers – which quite rightly are not technology requirements but relate to their desire to index the material in a way which facilitates the analysis of the legal and factual issues.
If the real needs are given thought at the outset, effective disclosure and publication to the other side is inherently achieved. This is where the real value of the both the technology and the upfront work to get the data structure correct pays off. Making sure that the material in a case is ordered is absolutely vital since it underpins the orderly way in which a case can be prepared and conducted.
Sadly, there are too many technology consultants who purport to understand how to use technology to support legal business workflow only to deliver a ‘repository’ where the mess of an electronic collection is worse than that of an initial collection of paper and electronic documents.
On the other hand, a little too often the blame can fall on the ‘document consultant’ when the consultatnt was not asked for input at the outset, instead being requested to fit into a workflow that was already flawed. Any worthwhile consultant will advise the client according to the interests of the case, not the interests of the supplier’s bank manager. By definition, this means that advice that is good for both sides, and advice that satisfactory disclosure can best be achieved if it is in the sights from the beginning. The consultant may well be the person involved who has the greatest experience of e-disclosure.
Moving Forward
We come back to the LiST group protocol. It is, indeed, in draft form at the moment, and this is precisely because e-disclosure needs to be formulated by experience. It sounds like the case in question has much to say that will benefit the protocol, and there is no doubt that it would be borne in mind and some positives can come out of it. Whatever the dispute, the lawyers should still be able to agree the rules of engagement. A decent consultant, though usually being brought on board by the claimant, will advise on an approach appropriate for both sides to be satisfied that the technology of choice for the e-disclosure process has serviced their needs. Even at a base commercial level, to do anything else would be counterproductive as the other parties are also part of the market for future employment.
Had the expectations in the case recounted by Messrs Charlton and Lavy been set by both sides getting good advice about the way technology helps and, conversely, where its limitations lie, there may have been a great deal less resentment. Costs would have been saved by not walking into a blind alley in the hope that it is the shortcut we have all been looking for, only to be obliged to turn around and start again with more people brandishing magnifying glasses. The technology will improve anyway, but all that is needed for a successful e-disclosure already exists – it just needs to be seen for what it is, not what the dishonourable sometimes pretend it promises.
Lisa Burton is a Director of Legal Inc, the litigation support, e-disclosure and electronic presentation specialists: www.legalinc.co.uk.
