by Kylie Petersen, Director - Legal Consulting, LitSupport
Discovery (Disclosure) is a bread-and-butter process for litigators, an entirely familiar and routine part of matter management. But add one little ‘e’ to the front of that very familiar process, and some litigators start to feel considerably less comfortable.
If the litigators in your practice fall into this camp, they’re not alone. Whilst eDiscovery has been gaining momentum around Australia for more than a decade and Courts in almost every jurisdiction have encouraged, if not mandated eDiscovery for all but the very smallest of cases, most litigators continue to manage litigation utilising a traditional, paper-based model.
Perplexing? Well yes, and no…
Perplexing? Well yes, and no…
What is eDiscovery?
At its most fundamental, eDiscovery is simply discovery that is given in an electronic format. It may apply to hardcopy and electronically stored evidence. Typically, however, eDiscovery is now used to describe the entire process of collection (which might include Computer Forensics), review, management, analysis and discovery of electronic materials from source to disclosure in electronic format.
There are many drivers for eDiscovery but the principal and most obvious ones are as follows:
- Firstly, technology has changed the way we create documents, communicate with each other, effect transactions and engage in commercial conduct. As a consequence, the ‘documents’ that are potentially relevant evidence in proceedings are far more likely to have been created and stored in an electronic format than a paper format. In short: today’s evidence isn't likely to be paper-based.
- Secondly, not only has technology changed the way we create documents, it has impacted significantly on the volume of documents so created. Email communications are an excellent example of this fact: emails are routinely sent to multiple recipients, each of whom may then edit, forward on or reply to the email, creating potentially voluminous and complex threads of communication, each segment of which may have evidentiary significance. In short: electronic evidence – there’s lots of it!
So Why Not eDiscovery?
I hear your next question: “If the reasons for eDiscovery are so obvious and compelling, why haven’t the litigators in my firm jumped on board the eDiscovery bandwagon?”
In my experience, the answer to that question lies in a complex mix of concerns and often incorrect assumptions, including:
- fear or mistrust of technology and new processes
- a perception that eDiscovery is expensive
- an assumption that eDiscovery is only suitable for Big Firms and Big Cases
- lack of understanding
- denial of the need for or value of eDiscovery
- ‘because it’s the way we’ve always done it’
- a preference to maintain control over the process
- a desire to protect a client’s interests through risk aversion or avoidance; and
- a genuine belief that paper-based disclosure is entirely appropriate and valid.
No guinea pigs required
The good news for those practices that don’t want to be at the forefront of change is that eDiscovery is not new. eDiscovery began in its nascent forms in Australia in the 1990s and, like any new practice, has evolved over that time into a set of accepted standards. Courts have issued guidelines, practice notes and default protocols, specialist litigation support software has been developed and matured, and support industries have grown to meet the need for complementary processing and consulting services. With the right support, eDiscovery is a low risk proposition. In fact, the riskiest position your firm can take is to continue to avoid eDiscovery.
The right time to transition your litigation team from Discovery to eDiscovery is now.
About our Guest Blogger
Kylie Petersen is the Director of Legal Consulting with LitSupport, the trusted partner of firms seeking innovative and reliable information solutions. She is a lawyer with private practice and in-house experience who has been a specialist eLitigation consultant for more than a decade. Kylie works with litigators across Australia and New Zealand to provide strategic and practical advice in relation to practice and procedure requirements, protocol negotiation and drafting, and to develop and implement best practice solutions for technology-driven evidence management. She has developed coursework for tertiary level Litigation Technology units at Murdoch University and QUT and is also an accredited Delium Specialist and a certified CAAT professional.
LitSupport is a strong supporter of the legal management community as the Technology Partner at the forthcoming ALPMA National Summit "Law Firm 3.0 - Leading the New Normal" from 18-19 October in Sydney and one of ALPMA's FY14 National Corporate partners.