Legal practice is trying desperately to keep up with changing technology.
This is especially true in the area of legal discovery – so much so that the term is almost outdated, tweaked ever so slightly for a digital age to become “electronic” or “e-discovery”, a more suitable moniker for tomorrow’s world of litigation.
A relatively new concept, e-discovery has spawned a new, entirely self-contained industry, one whose dominant characteristics have been forged in the US and which is developing almost more quickly than the law can keep pace with.
As a legal concept, discovery has existed for generations in systems derived from English common law – or, in other words, in most former British colonies.
It provides for the exchange of information between two warring factions so as to assist in the smooth running of subsequent litigation.
However, much of the smooth running has been stymied since the turn of the century, due to a rapid advance in technology, the growth of electronic storage and related problems in navigating and identifying relevant documents.
Where once lawyers might have sifted through boxes of paper files, today’s electronic discovery professionals are filling the void in an industry estimated in some quarters to have a potential global value of €2.5 billion by 2018.
"This is definitely going to become a common thing," says Victoria Kitskan, who studied computers in college to master's level. She eventually found herself an "e-discovery and digital forensic consultant" at the Espion Group, specialists involved in numerous cases, including some related to the Bernie Madoff fraud in the US.
“You will have technology geeks who know how to handle large amounts of data and treat it properly,” she says. “There is nothing [in terms of a specific qualification] out there at the moment that helps people get into this area. I kind of fell into this job, [but] it is definitely something that can be developed. It could be taught for a one-year master’s or a two-year diploma.”
The Espion Group says e-discovery is a byproduct of society’s increasing dependency on digital storage capacity, which in turn has given rise to huge demand for the analysis and review of digital information.
“For example someone has a 500 gigabyte hard drive, and that is a lot of files,” Kitskan says. “Only some of them would be relevant.
“What people then usually do with the electronic programmes available, they can use key words [to discover] what is the hot-document or a silver bullet.”
When legal proceedings are initiated, a judge oversees the discovery process and both sides begin searching and reviewing electronic files to find the documents most relevant to their case.
Here, the law must adapt. In the US, the concept of e-discovery, its development and the reliance of courts on it has far outpaced any other jurisdiction.
"What happened was the US ran away with it, much like Europe inventing the car and then the US running off with it and developing great big cars with teeth," says Chris Dale, an industry exponent and former lawyer who will address an e-discovery conference in Dublin later this month.
In 2004, United States district court judge Shira Scheindlin issued a groundbreaking ruling on e-discovery (Zubulake v UBS Warburg), considered the first definitive case in the area.
The judgment covered the scope of required preservation for electronic evidence, a lawyer’s duty to monitor compliance and production and penalties for the destruction of records.
“That became the big kicker for the whole game,” Dale says. “It was once [just] word documents and emails and now you have banks, for example, where all of their conversations are recorded. It became increasingly necessary in other jurisdictions for the rules to be developed [on the extent or reach of discovery].”
Last year, a non-binding guide on e-discovery was introduced to the Irish courts.
Mr Justice Frank Clarke of the Supreme Court, speaking at a conference in London in May, explained its value.
“While there was great expertise in major law firms about how to handle e-discovery, it was quite confined to those major firms. But where one side didn’t have that experience, the courts were experiencing significant difficulty because of a lack of trust.
“So having a standard which someone who was not familiar with e-discovery might be able to use was perceived to be very useful.”
While such guides are by now essential, the sands of e-discovery and related technology are constantly shifting and the law, or at least its practice, must keep up.
Dale calls it a “rolling process”, one “very rapidly accelerating”. Often changes that do occur, he adds, have to do with ensuring the demands on the courts do not outstrip resources, to defend the system and the ability of all to access it by policing and supervising the discovery process with clear guidelines and avoiding undue congestion.
“For the most part, the rules as they stood before all of this are the same. You don’t need to change the definition [of relevant data] now that it’s recorded on an e-document rather than on paper. The definition still works; the changes come in terms of how to manage it.”
There are jurisdictional issues, too, a complex weave of differing laws surrounding the export of information from one country to another.
Earlier this year, Microsoft was ordered to produce, for US-based litigation, email information stored on its Irish servers despite arguing this amounted to an illegal search. This significant ruling is currently under appeal.
Among other more obvious and visible shifts are the ever-changing nature of data storage, the software required to mine it in the discovery process and the skill-sets of an emerging profession.
“Before electronic discovery, it was not uncommon to see large legal teams photocopying and printing huge volumes of hard copy data and manually reviewing each document, which was an arduous and time consuming task,” says Leonard McAuliffe, who heads up information security and forensics at PricewaterhouseCoopers (PwC).
“This process has become unmanageable in this digital age where one average personal computer can hold up to 10,000 lever arch files of data.”
These days, brands like NUIX, Relativity and Clearwell all provide the necessary systems to search, file and present information on platforms tailored for the legal profession, often using “keywords” to guide them through the electronic maze. Then there are the practitioners themselves, at the vanguard of the digital-information age.
Mike Perez, a newly appointed expert in forensics and e-discovery manager at PwC explains: "Currently, the more experienced e-discovery specialists in Ireland come from an IT forensics background and have been forensically collecting and analysing data for many years and have updated their skills to process and review large volumes of data on new e-discovery platforms.
“As hard drives are becoming larger and storage space is becoming cheaper, the quantity of ESI [electronically stored information] that is being generated by organisations is growing at an increasing rate,” Perez adds.
“All this ESI can one day be potentially discoverable, so as data sizes become more burdensome, there will be an increase in the reliance on technology to assist with the review of data.”
Dale puts things even more simply. “Technology is advancing at a faster rate to try and solve the problems that technology has given us [in the first place],” he says, “and with it comes the need for a new type of person to help with the searches, but who is not necessarily a lawyer.”
