A survey by KPMG Forensic amongst 100 litigators in 22 leading UK-based law firms has found that there are widespread concerns about ambiguity in the e-disclosure rules, and that half of those surveyed believe judges and masters should be trained on the difficulties routinely faced in an e-disclosure exercise. To see Chris Dale’s new article dealing with the training of judges and other aspects of e-disclosure, click here.
The research, carried out on KPMG Forensic’s behalf by Ipsos Mori, found that overall 48% of those surveyed believe that judges and masters are ill-equipped to make effective e-disclosure case management decisions. Amongst those litigators more heavily involved in e-disclosure, this rises to 71%.
In addition, over two thirds (68%) of those surveyed support the establishment of an independent body of industry practitioners to promote best practice and training in dealing with the disclosure of electronic documents.
Two years on from the anniversary of the CPR which laid down guidelines on e-disclosure in litigation cases, only 17% of lawyers believe that they have had a positive impact. Nearly a half (43%) believe that the rules have not had a positive impact, and almost six in ten (56%) believe that the rules have led to increased costs in conducting litigation.
According to KPMG’s survey, nearly half (48%) of e-disclosure cases cost £500,000 or more, with over a quarter (26%) costing more than £1 million.
A possible contributory factor to these high costs, KPMG Forensic suggests, could be that the two sides in litigation are not meeting early enough – or at all – to discuss e-disclosure issues. Despite encouragement in the CPR that both sides of a case should cooperate on e-disclosure, nearly four in ten respondents (39%) admitted that they had never met their opponent to discuss it. Of those that had met, in nearly a third of cases (29%), it was not until or after the case management conference.
The most common suggestions from lawyers for improving the e-disclosure process are to obtain more clarity and guidance on the CPR rules, and to restrict the types of documents or information disclosed, or the cases in which the CPR e-disclosure rules apply.
Litigators typically regard business e-mails, Word documents and Excel spreadsheets as the most important types of document for electronic disclosure. However a range of other documents including databases, audio files and personal emails are also considered important. Perhaps surprisingly, text messages are not widely regarded as significant.
Commenting on the report findings, Paul Tombleson, Head of Forensic Technology at KPMG Forensic, said: ‘As electronically generated and stored information continues to proliferate, lawyers have expressed some clear concerns that the rules have not kept pace with the reality of the modern business world. E-disclosure can be immensely complex, costly and challenging, and litigators have called for renewed energy in agreeing clearer case management guidelines. Many of them also clearly believe that some training for judges could be beneficial. Technology may have created the problem, but technology can also be part of the solution. Lawyers need to be aware of the tools that exist to help them manage the information load, as well as devise review strategies to make the task easier. E-disclosure, as technical as it may seem, is in many ways at the heart of the modern litigation process, so it is clearly of great importance that the issues lawyers have raised here are debated, discussed and acted upon.’
To access the survey, click here. For the Fulbright & Jaworski Litigation Trends survey insofar as it deals with disclosure and retention policies, click here.
