The review being presently undertaken by Lord Justice Jackson threatens to revolutionise the civil litigation landscape. Jackson has been commissioned by the Master of the Rolls and the Ministry of Justice to conduct a root and branch review of the civil litigation system, with a remit to reduce costs. He is examining every stage of the litigation process to determine where excess expense is being generated and has already indicated that he is prepared to be quite radical if the end result is more efficient dispute resolution.
While the effects on lawyers may be evident, IT staff might ask what this means for them? The short answer is that the knock-on effects of Jackson’s recommendations could have quite a significant impact on the role and responsibilities of law firm or corporate IT departments.
Jackson’s final report is due at the end of 2009, and his recommendations, if adopted, are not likely to be put into practice before next summer at the earliest. However, even at this stage of the process, it is reasonably safe to predict a number of effects that the Jackson Review will have on IT departments in the future.
Jackson considers that information technology needs to be at the forefront of efforts to reduce the cost of civil litigation. In particular, his interim report – published in May 2009 – identifies the discovery process as one of the single biggest contributors to cost in civil litigation – and sees that technology has a key role to play in reducing those costs. One effect of this is that the technical professionals will play a much more proactive and strategic role in the conduct of litigation than they do now.
In an environment where costs will come under constant scrutiny, it will make sense for IT professionals, alongside e-disclosure specialists, to attend the case management conference to advise on the document review strategy. By being able to accurately analyse the challenges that the process is likely to throw up, taking into account the client’s IT system, data archiving policies, data formats and data preservation requirements, technical professionals can assist the lawyers handling the case to avoid the major pitfalls and accurately predict the final cost.
The IT team can also provide strategic and technical advice on how to handle large volumes of data and, more generally, how to ensure a discovery project is conducted as cost-efficiently as possible. Involving the technical team in this way may increase up-front costs, but will almost always reduce the time and cost of document review over the course of a dispute through the reduction of lawyer time billed when focusing on the core document population.
Jackson says that one of the causes of excess costs is the duplication of documents disclosed to the other side and asks whether cost penalties should be imposed on parties that simply dump thousands of documents on their opponents without running a de-duplication exercise first. It is very likely therefore that the courts will expect to see greater use of technology to minimise the manual effort required to conduct a document search and review. This will include the greater use of discovery technology such as pre-filtering, document de-duplication, near de-duplication tools, and more sophisticated review applications tools (such as concept searching) to maximise the automation and efficiency of a discovery exercise.
IT departments will play a key role in identifying, evaluating and procuring this technology and will also have a role in enabling their firms will to get on the front foot to improve their internal document-handling capacity and ensure that discovery exercises can be run as cost-effectively as possible.
Law firms – and their IT teams – will also need to educate their clients on the need to get their document management up to scratch. This means focusing on how and where documents are stored, as well as how up-to-date and effective their technology is. This will ensure that in the event of a discovery exercise, they are able to restore and search documents that are several years old. In the United States, the courts and regulators have placed sanctions on firms and clients that fail to manage document management efficiently and it is very likely that the same will happen here.
The enhanced role of IT departments will not come to pass, however, if IT departments do not make their potential value in the post-Jackson climate known. One potential danger of the crackdown on costs is that some law firms will seek to reduce costs by skimping on the e-disclosure exercise. It goes without saying that this approach is likely to prove extremely counter-productive, potentially leaving their clients at risk of adverse inferences being drawn by the court if a discovery exercise is perceived as being insufficiently thorough.
John Lang is IT Director of Epiq Systems, International, a provider of integrated technology solutions for the legal profession. Prior to joining Epiq Systems, Lang spent 19 years managing global IT programmes across all aspects of the business with companies such as Hostway, Gap Inc and Toys R Us online division.
