Litigation Support and Electronic Disclosure

e-Disclosure for Everyman

The seminars on electronic Disclosure cover every aspect of it – except the everyday knock-about cases which every firm has. The suppliers of litigation software and litigation services promote their expertise in every kind of litigation – as long, apparently, as it is document-heavy and preferably multi-national. E-Disclosure is in fact within the reach of most firms, but you have to look quite hard to find it

There are probably about 30 firms of solicitors in the UK who give and receive disclosure of litigation documents electronically as a matter of course and who employ a litigation support manager to help them do it. Rather more than 30 law firms disclose their documents electronically occasionally and many have done so once or twice.

The latter group fall into two categories – those who know that e-Disclosure is the way litigation is going and want to experiment, and those who find themselves having to understand both the principles and the practice of electronic disclosure at short notice simultaneously with taking instructions on the biggest case they have ever had.

It is clear that there is a large demand for information about e-Disclosure – the many conferences and seminars do not seem short of takers many of whom, to judge by their questions, are in the foothills of basic mechanics rather than on the peaks of advanced knowledge.

There is a lot to know. A recent two-day conference in London was addressed by partners from large law firms, senior consultants from the major litigation support service providers, litigation support managers, the FSA, in-house counsel and a Queen's Bench Master. The talks ranged from the basic - "CPR on E-Disclosure one year later: Understanding your obligations" to the practical - "Using technology in Disclosure to reduce the cost of litigation" to the abstruse - "Legal and regulatory drivers for information management". Other topics included information retention and storage, FSA best practices, conflicts between data protection requirements and disclosure obligations, multi-jurisdictional disclosure and managing the disclosure process.

Another conference a few days later concentrated mainly on the practical end of disclosure – "The state of the industry: eDisclosure and E-Discovery", "lessons learned from the litigation support team" and talks on proportionality and costs and on records retention.

A balance then between some very high-flown legal considerations and some practical hands-on stuff from those who get their hands dirty daily. Both of the events were sponsored and/or addressed by suppliers of software or services who, like the conference organisers, judge that there is a keen market for their wares.

There is no doubt that there is such a market and that it is growing. There are pressures from clients and the courts, peer-pressure from opponent firms who take for granted that Disclosure data will be exchanged, pressure from young assistants who assume that their new employer uses technology, and from finance directors who question the cost of traditional disclosure. No wonder these conferences are well-attended.

But what do you do when you get back from your conference? You might find that a client has delivered a lorry-load of paper and 25 Gigabytes of mail folders plus back-up tapes; there may be instructions to act on a new matter involving multi-jurisdictional disclosure requiring a detailed knowledge of FSA best practice; it is possible that a client wants urgent advice on its global document retention policies; Rott, Weiller & Goebbbels LLP may just have delivered 8 DVDs of electronic disclosure with a letter demanding yours by return.

What is more likely is that half-a-dozen ring binders and a couple of CDs of Word documents, Excel spreadsheets and e-mail files have arrived. Your ears still ring with talk of metadata and the Practice Direction to Rule 31 CPR. Your room is already full of paper. Software suppliers, legal support services companies, litigation support managers and partners from big firms have convinced you that this is the way to go. But which way, exactly? Who with? How can you start now?

Perhaps you go to the web site of one of the service providers whose card has just been given to you. The first begins by referring to its "end to end approach to managing multi-jurisdictional disclosure" which sounds a bit grand for your few ring binders and CDs. The next one talks of "collecting thousands of emails, hard drives, back-up tapes or boxes of documents from multiple jurisdictions". That too sounds a bit remote from your hum-drum disclosure exercise. The software suppliers' sites too emphasise their biggest triumphs – the major clients, the massive document populations, the large teams.

The one thing you cannot find is any idea of what it is likely to cost to turn your box of paper and CDs into the efficient, collaborative data store which you have been told about. It is a bit like estate agents who put "price on application" on their property advertisements or the hi-fi manufacturer who takes whole pages in magazines to advertise the fabulous quality of its product but nowhere states the price. It is supposed to generate a feeling of exclusivity, but engenders instead the feeling that if you have to ask the price you cannot afford it.

Nor can you really get your mind round what is involved. The suppliers appear to be addressing a different audience – their target really seems to be the very people who have just been lecturing you about e-Disclosure, people who know exactly what they want to achieve and how to achieve it. You know that your paper, your Word files and your e-mails will all end up on a screen and that you will be able to rattle through them once they are there, but you are used to supervising every step of the Disclosure process, and the idea that you might just hand them to a courier for someone else to pour into a system lacks the controlling element which you like.

What does this "system" involve? Come to that, where is it? The IT people won't welcome it in house and the idea of having it hosted in some anonymous warehouse in Docklands sounds more remote than you like. And what does that cost anyway?

"Another time" you think, and send for the trainee who will dictate the list, organise the photocopying and the typing, and print off all the e-mails for you to review. Much of this apparent inaccessibility and mystery is in fact illusory or accidental. The suppliers would like your business but inevitably play to their biggest customers, and those customers do not need explanations. They just want the job done as quickly as possible, an invoice to pass to their clients and the data made available for review. That is all you want really, but it does not seem as simple as the experts described.

Part of the purpose of this site and of my business is to remove some of the layers of mystery and to make electronic disclosure accessible to users with little or no experience of it.

This is one of a series of articles aimed at demystifying the processes of e-Disclosure. The series includes:

Introductory

e-Disclosure for Everyman

e-Disclosure - the basics

Getting started

Detail

The sources of Disclosure Documents

Documents, Disclosure Data and Metadata

Choosing litigation software

Litigation Support Providers

If, meanwhile, you think that I might be able to help you, please contact me.

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