Predictions 2008: Forensics and Discovery

January 3, 2008

From Chris Dale, consultant specialising in litigation support and e-discovery:

A judge strikes out a Statement of Case because the party has failed to comply with the disclosure requirements of the Practice Direction to Part 31 CPR. The Court of Appeal upholds the decision, finding that the judge acted proportionately and within his management powers.
Corporate clients routinely require litigation teams to identify their e-disclosure strategy when pitching for work.
Law firms advertise for ex-litigation lawyers to work on disclosure exercises from home.
The government announces that the investment in the civil courts, promised to show results by 2002, is now in place and is seen as a priority.

From Alex Dunstan-Lee, a Legal Specialist in KPMG’s Forensic Technology Services group:

Thinking in data: Lawyers will start to understand the power of thinking in data, not in paper. They will start to realise that word documents, e-mails etc are not pieces of paper inserted into a computer screen. They are large bodies of data, some of which you can see, some of which you cannot. This opens up a world of possibilities for the manipulation of that data, providing risks and opportunities alike. At the moment lawyers (and many other business people) are like intermediate French speakers who can get by speaking the language but cannot think in it. This will change (though it is a road that stretches well beyond 2008).
Lessons for lawyers: Lawyers will start taking more extensive lessons in technology. They will realise that they cannot delegate all the thinking on IT. Whether it is to understand the e-disclosure world and be conversant with judges (who are already starting to receive training), or to be able to discuss with clients records management issues which will be a big issue for many of their clients in the coming years, or simply to help manage their own business, they will need education. They understood paper, files and filing cabinets. Now they need to understand the modern-day equivalents.
Legal Technology Consultants: UK firms will move towards having some form of senior consultant who is genuinely able to bridge the gap between lawyers and technologists. This will not be a mainstream Chief Information Officer (whose knowledge and remit is too general) nor will it encompass traditional IT support staff. For example, this will be someone who can converse with senior lawyers about what is ‘reasonable and proportionate’ in the context of an electronic disclosure exercise and help them understand the technology available and the nature of the evidence’s originating media. They are likely to have a legal background – indeed, it may be a technically minded fee-earner who is appointed in this role. This is a trend that is already apparent in the US.
Mining structured data: For the first time, lawyers will start to understand the power of structured data (ie sales ledgers, electronic accounts, complex databases) as opposed to ‘unstructured data’ (ie e-mails, word docs, etc). They will start to explore the way in which this data can be manipulated using technology to help support a case.
In-house lawyers on top: In-house legal teams will take more control of their data and documents. They will educate themselves more effectively as to the technology in their business and how records are managed. They will expect their lawyers to be conversant in these areas. They will want to dictate to the lawyers the review technology that lawyers use, and the methodologies used to get to the interesting material, and they will not stand for lawyers spending a lot of time reviewing irrelevant material or handling data inefficiently.
Regulatory bodies in control: Regulatory bodies (such as the FSA, SFO, OFT and the Competition Commission) will become more effective at handling data, and more knowledgeable about the review methodologies available. They will enter into discussion with the parties about the use of technology in their investigations. Lawyers and in-house legal teams will better understand the likely cost of requests for information and the quantity of electronic data involved and should be in a position to leverage this knowledge in their favour when discussing the information gathering procedures with them.

From Andy Harbison, Senior Manager IT Forensics & Litigation Support, Deloitte Touche, Dublin:

IT Forensics and Cybercrime

Unfortunately cyber criminals will become a good deal more sophisticated in the next year. Legal professionals advising Banks and other financial service companies should look out for three new trends in phishing frauds
• ‘Fast Flux Phishing’ is a new way of carrying out mass phishing frauds. I won’t go into the technology, but it is something that makes the fake Web sites associated with such scams much very much more difficult to locate and shut down.
• ‘Trojan’ Phishing is another nasty new trend likely to become more common in 2008. Instead of using a fake Web site to con their victims, the criminals plant a Trojan horse program on the victim’s computer that takes over when the victim accesses their e-banking account – sending their credentials, passwords etc. to the criminals. It is much more difficult to detect these scams, and (from the liability perspective) much more difficult to place the blame for falling for them on the customer.
• ‘Spear Phishing’ is likely to cause the most legal friction. Instead of targeting a large number of e-mail accounts with a generic phishing e-mail, spear phishing e-mails are more carefully researched, using information gathered from the Internet and other sources. This allows the e-mails to be far more convincing. Spear phishing attacks are disproportionately targeted at ‘high net worth’ individuals, hence the possibility of legal action.


The biggest concern in e-discovery is that in the next year we are likely to see the consequences of a surge in computer hard drive sizes that occurred a couple of years ago. This will result in yet larger and more costly review and discovery processes. It might interest you to know that the scientists responsible for the breakthrough that permitted this sudden growth in hard drive sizes (it’s call Giant Magnetoresistance or GMR) won the Nobel Prize for Physics this year. This is because lawyers don’t vote for the Nobel Prize.
If past experience in the USA is any guide, you may also see increasing requests for law firms to provide ‘Litigation Preparedness ‘ services – ie making sure companies’ archives are correctly managed for rapid review and discovery. Companies with any exposure to US litigation should be doing this already.

Nigel Murray, Managing Director, TRILANTIC:

Law firms are now able to analyse vast amounts of multi-lingual documents in the language they wish, rather than employing local translators. A rise in automated, mass translation tools will be evident. The most important drivers will be that human error and misunderstanding are negated as is the need for short-term resources when specific cases arise.
Speed to disclosure, risk management and confidence will therefore be improved as irrelevant data can be identified and removed quickly. Firms can take on multinational cases more effectively and ultimately pass this benefit onto their clients.