Two recent developments in the U.K. courts have brought the issue of self-serve e-discovery back into the spotlight. In late July, the England and Wales High Court issued a more than £500,000 penalty to a defendant for failing to fully produce relevant documents and fulfil e-discovery obligations in a patent litigation. Also in July, the Business and Property Courts approved the Disclosure Working Pilot, which as part of the permanent disclosure regime will strengthen requirements for “parties [to] engage at a much earlier stage in discussion and agreement as to how best to tackle the problem of ‘big data’.” Both decisions illustrate the importance of establishing and following defensible e-discovery best practices, particularly in today’s era when emerging data sources are complicating discovery workflows and an increasing number of platforms are being touted as providing easy, DIY e-discovery features.
As of October 2022, the Disclosure Pilot will become a permanent part of the court rules as Practice Direction 57AD. With this scheme in place, the stakes are even higher for law firms and in-house legal counsel to ensure complete, accurate, defensible document disclosure. It states, “Legal representatives who have the conduct of litigation on behalf of a party to proceedings that have been commenced, or who are instructed with a view to the conduct of litigation where their client knows it may become a party to proceedings that have been or may be commenced, are under the following duties to the court: (1) to take reasonable steps to preserve documents within their control that may be relevant to any issue in the proceedings; and (2) to take reasonable steps to advise and assist the party to comply with its Disclosure Duties.” In other words, in-house and/or outside counsel are now specifically accountable to ensure e-discovery is conducted properly.
In the patent case ruling mentioned earlier, tens of thousands of documents that were in scope were not identified, collected or produced. The judge specifically called out that e-discovery best practices were not followed. This was an important ruling but was by no means the first of its kind. Our teams have encountered countless matters in which individuals who are not properly equipped to handle the scale and legal requirements of complex discovery requests are tasked with managing document retrieval alongside their day jobs — leading to poorly planned, and hastily executed exercises, which overlook foundational defensibility and audit requirements. More often than not, this poses a significant risk, leads to missed deadlines and necessitates costly re-collections. Now, as emerging data sources come into play, and modern systems’ robustness have not been stress tested for complex e-discovery functionality, many organisations are walking into trouble by relying on so-called DIY e-discovery approaches.
A key issue here is that the increasing intuitiveness and self-service positioning of leading enterprise IT systems such as Microsoft 365, Google Workspace and others is leading many to believe that they and their (or their clients’) IT teams can easily identify, collect and process content without the involvement of e-discovery experts. Reality is quite the opposite, however — while these platforms are easy to navigate from a user perspective, the data within them is now dynamic-by-design. Functionality is evolving so quickly, and with the increasing fragmentation of the broader corporate data landscape, performing a collection exercise is now significantly more complicated than it was even five years ago. This can have a substantial impact in the identification and collection phase, setting off a cascading effect into later, critical stages of a matter.
The good news is that running afoul of the Practice Direction 57AD requirements is wholly avoidable when best practices are observed. Below are some of the best practices to follow, along with key considerations for matters where internal IT or other non-e-discovery professionals are involved with document collections. These will help teams avoid downstream issues and penalties and ensure the discovery process is forensically sound, thorough, verified and auditable:
- Supervision by highly experienced, vetted e-discovery specialists. It’s crucial to engage true e-discovery and/or digital forensics experts when it comes to complex data collection exercises. While there are various alternative legal services appearing in this fast-growing market, without the support of the knowledge and expertise in the complex legal and technical issues that arise in these types of matters, teams can quickly wade out of their depth. This does not always mean that a forensics expert must do the collection — there are many instances where an internal IT person can manage the data collection successfully. However, it’s important that collections handled by internal IT teams are vetted and overseen by a forensics expert to ensure that nothing is missed, the collection is sound and that it complies with the information provided in the Disclosure Review Document submitted to the court.
Set rigorous standards. If organisations opt to conduct identification, collection and processing in-house through their IT or e-discovery platforms, counsel must rigorously examine, or engage an expert to examine, the internal team’s competency to conduct the task, as well as its understanding of the audit processes and quality control needed to maintain defensibility. Industry experts tend to agree with the Practice Direction 57AD guidance (and the recent High Court ruling) that any failure of legal counsel to ensure sufficient oversight of the e-discovery process — especially in circumstances where the court is assured that such oversight is being provided — is unreasonable and unacceptable.
For example, the case mentioned earlier confirmed that there was an expectation that even though in-house collection had been approved, there still should have been at a minimum, “supervision from e-disclosure specialists in England who understand the legal requirements in this jurisdiction.” Legal teams must therefore insist on best practice and close oversight of every phase of discovery.
- Consider proportionality. Not every matter will warrant a full-fledged e-discovery team and forensic collection. However, in every matter, teams should consult experts to oversee or verify the appropriateness of the approach pursuant to the numerous potential systems and their nuances, scope, scale, and data complexities of the case. This is important, because even if disclosure deficiencies are not deliberate, they can still be very serious. As has been shown in the recent case, re-collections found that the potentially relevant document population was more than 200% larger than the original production and overall, the discovery mistakes led to an extension of the trial’s timeline.
- Establish and maintain defensible, repeatable, auditable processes. Teams must implement processes that are proven, documented and have embedded quality control mechanisms to catch mistakes before they become downstream issues. If deficiencies are detected in the dataset, it is virtually impossible to go back and find out what went wrong without a defined process and audit trail.
- Recognise that technology has limitations. Increasingly, lawyers are finding themselves in difficult circumstances after misplaced faith that technologies will always work as intended or expected. Teams must not fall into the trap of linking commonality of business platforms with simplicity to conduct defensible e-discovery. In the recent case, arguments were made that the discovery deficiencies were a result of indexing errors in the client’s IT systems, which caused large datasets to filter incorrectly. Later, experts testified in court that the system is “not designed for large scale searching," and “should not be used in this manner in an exercise such as this.”
The current rate of change within major technology suites such as Microsoft 365 and their built-in e-discovery capabilities is difficult for even experienced e-discovery experts to keep up with. The back-end technicalities of how data is interlaced, indexed, stored, versioned, logged, filtered, encrypted, decrypted, searched, exported, etc., are highly complex. If not handled by experts who know how to navigate them, any number of these nuances can quickly derail an e-discovery exercise.
The key takeaway from these recent developments in U.K. courts is that even seemingly small issues may be potentially significant from an e-discovery perspective. While e-discovery may appear to be evolving to a simple, do-it-yourself task, under the surface the risks have become much greater than ever before. Experts must be involved, and matters must have adequate oversight to scope, analyse and quality control check workflows before they cause costly downstream issues.
The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.