Predictions 2009: E-disclosure, Forensics, Litigation Support and More

January 5, 2009

From Chris Dale, the e-Disclosure Information Project:,

Digicel Ltd v Cable & Wireless will have an immediate effect on case management of disclosure. No-one – practitioner or judge – can now overlook the Practice Direction to Part 31 CPR after a widely-reported case in which a party was forced to meet with opponents to discuss the extraction of data from backup tapes and to redo part of their disclosure using keywords ordered by the judge. We will see much more co-operation, enforced by the court if necessary. Although Digicel was an application to widen the scope of disclosure, parties and judges will spot its potential for achieving the opposite.

Although the solicitors in Hedrich v Standard Bank beat off a wasted costs application brought against them in respect of disclosure defects, they did so by the skin of their teeth and on grounds extraneous to the defects. Solicitors will keep handy the phone number of someone who can help them with e-disclosure, and services providers can expect calls for pre-emptive advice.

Early Case Assessment will move from being a technical-sounding term to a statement of the bleedin’ obvious. There are new generations of software and services designed to give lawyers and their clients a quick and informed peek into their sources at a reasonable cost, and disclosure will move from being just a formal stage in the litigation process to what it ought to be anyway – an upfront assessment of the evidence early enough to supply both an idea of prospects and an estimate of costs.

This is just as well, because there will be a new focus on the (existing) obligation to discuss sources with opponents and to argue proportionality in front of the judge at the first CMC. That obligation will be buttressed by a new Technology Questionnaire and a Practice Direction dedicated to electronic disclosure.

Generally, the prospect of an increase in work leads to an increase in costs. The reverse will happen as contentious work flows from recession. For the first time in a decade there will be litigation work to compete for, and just at the time (see above) when new early-stage applications become available and when judges are becoming more alert both to the power in the rules and to the power of ECA applications. Which clients are not going to question how the lawyers propose to handle their documents? Answer: those who decide to take much of the work in-house.

From Mathew Davis, Litigation Support Lawyer, and Bill Onwusah, Litigation Support Manager at Lovells LLP:

Notwithstanding that these things are always a hostage to fortune (people only remember the wrong ones, such as: ‘I have travelled the length and breadth of this country and talked with the best people, and I can assure you that data processing is a fad that won’t last out the year’ – Editor in charge of business books for Prentice Hall, 1957), our predictions are as follows.
Business entities will increasingly appreciate that poor records management results in larger volumes of irrelevant electronic documents being reviewed by their lawyers which in turn leads to unnecessarily high legal fees. This realisation, combined with the current economic climate, will result in sophisticated clients and/or those frequently engaged in litigation trying to exert greater in-house control over the disclosure of electronic documents both in anticipation of and during litigation. Organisations with document management systems and clear, effective and enforced document management policies will be able more easily to search and identify their disclosable documents, preserve them without negative effect on their business and produce to their advisers a more focused set of documents for review. This will dramatically cut the costs at every stage of the process for the disclosure of electronic documents. This will probably be achieved by one of the major document management suppliers coming up with a review tool to sit on top of their document management software, in the same way as certain email storage companies also host litigation support systems. This combined tool will be used to identify and preserve the desired material and then allow the in-house user to review it and, if they wish, apply some coding. The required documents can then be exported to the legal advisers or supplied to them as a hosted database.

From Andy Harbison, IT Forensics Lead, Enterprise Risk Services, Deloitte, Dublin

Firstly I suspect as their clients come under increasing financial pressure, legal professionals will come under increasing pressure to use electronic discovery and litigation methods simply as a means of controlling costs. In any case, in this day and age it is getting difficult to justify wading through lever arch files and bankers boxes of printed paper when electronic data management and analysis methods are available.
I suspect the downturn will also encourage a lot of new entrants in the IT forensics and electronic discovery areas. There is a perception in the marketplace that these are disciplines that are likely to thrive in an economic downturn. On the positive side, this will result in a reduction in costs for clients. More negatively, I suspect it may also lead in some places to a deterioration in standards, as new entrants are less likely to have expertise or reliable processes.
On the technological front, encryption is now becoming very common on evidential computers, particularly on laptops, as a consequence of some of the more public data loss disasters in the last 12 months. This will, of course, complicate the business of evidential data retrieval. In a similar vein we are beginning to see increasing numbers of laptops and other devices with static memory chips replacing old-fashioned hard drives. The advent of these new devices will require the development of new techniques if reliable evidence is to be retrieved from them.
Finally I expect to see more of something we have noticed in the last few months in many of our cases. We have observed a considerable growth in the use of counter-forensic techniques on the evidence we are given to analyse. You may be aware of the so called ‘CSI Effect’; the tendency of jurors who are watchers of police forensic procedural TV shows to expect the prosecution in legal cases to draw on sophisticated and unnecessary forensic techniques in their evidence, and to draw a negative inferences if they are not used. We have seen a parallel CSI Effect where suspects have become aware through such shows of the kinds of valuable evidence that can accumulate on evidential computers, and now take measures to remove it, or ensure it never collects on the computers in the first place. I suspect to see greater numbers of such instances in the next year, and more sophisticated techniques employed to try to foil my investigations.
Then again I suppose the march of progress is something we all have to live with.

From Andrew Haslam of Allvision Computing:

1. In response to the rise of knowledge about electronic disclosure amongst the courts and clients, there will an increase in the number of law firms with in-house expertise in all litigation support matters. The trend will be for these more ‘savvy’ firms to establish specific working relationships (if not formal panels) with a discrete number of suppliers.

2. Though the level of activity within the litigation marketplace will increase, the focus on costs and increased control exerted by law firms and their clients will drive prices down and at least one medium-sized supplier will go under or merge. This pressure will be exacerbated by the ‘big four’ accountancy practices winning a significant number of the large scale litigation cases emerging from the sub-prime, etc. fallout

3. Clients and law firms will increasingly be looking for companies supplying the full range of litigation services, from data collection, pre-processing, hosting of a review platform, through to preparation of a court room bundle.

4. The main area of growth will be the provision of commoditised litigation services to mid and small tier law firms.

5. The use of paper, with scanning and coding requirements, will continue and show no signs of abating no matter what suppliers and commentators say.

6. There will be a Case Management Conference where combative and hostile litigation lawyers, trained from birth to argue over anything and everything, will indeed have heeded CPR, r 31.7 and have actually cooperated on electronic disclosure.

From Peter Sommer, Visiting Professor at the London School of Economics and Visiting Senior Research Fellow at the Open University.

Prediction 1:  Criminal Law/Interception

Home Office legislators and policy-makers will realise that the RIPA distinctions between traffic data and content are impossible to make in most Internet applications.  In effect the entire data-stream will have to be collected and the material beyond the scope of the warrant thrown away.  But that process may itself involve breach of RIPA. This will lead to a wholesale re-think of interception warrants, including the appropriateness of involving the Home Secretary in a quasi-judicial role in granting the most intrusive warrants.

Prediction 2:   Problems of E-Disclosure

As e-disclosure increasingly uses the forensic procedures of copying entire hard-disks, including deleted material, there will be enormous challenges when one party wishes to redact material on the basis that it is privileged, confidential, or outside the scope of Standard  Disclosure.  In forensic disk copies all the material is inextricably linked. Judges will struggle to arbitrate as competing experts suggest remedies and counsel seek advantage for their clients.