Predictions 2010: E-disclosure

December 30, 2009

From Andrew Haslam, independent litigation support consultant, Allvision Computing: 

1) The long awaited new practice direction with its associated questionnaire, and Lord Jackson’s report into costs will prove to be the final snowballs at the top of the sun-warmed, creaking snowfield of EDD. They will trigger an avalanche of awareness of e-disclosure amongst unprepared law firms (ie the vast majority of them). Some will survive being engulfed, some will come a nasty cropper.  

2) His Honour Judge Simon Brown QC will pass down more case law on e-disclosure which will hit lawyers where it hurts most, their pockets. 

3) A client, being on the wrong end of the aforementioned judgment from Simon Brown will sue the law firm concerned for unprofessional conduct, and win. 

4) The main area of growth will be the provision of commoditised services to mid and low 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 31.7 and have cooperated on electronic disclosure before they turn up for the meeting.


From Sandra Potter and Phil Farrelly of Potter Farrelly & Associates: 

2010 is shaping up to be one of the hardest years for the legal profession in decades.  Doing more with less will be the on-going mantra, with law firms remaining cautious about raising head counts until some stability starts to show.  In the area of litigation, clients will continue to look for ways to push down the costs of moving their matters along and you can expect more clients to look at ways to in-source the grunt work around their matters by hiring their own temporary teams to assist.  Hosted software solutions will continue to increase their share of the market and will provide more value to their clients by offering more integrated solutions across a range of discovery and document management offerings.

Trends  to watch include the stronger take up of early case assessment products such as ClearWell, FBI and WombatLegal especially in regard to email processing.  Expect corporations to get tougher in regard to e-mail use and e-file retention policies with a matching investment in compliance and retrieval tools in the same area.  The courts will continue the trend to force a more proportional approach to discovery, especially in regard to what they consider to be unjustified costs of retrieval associated with information of questionable probative value.  Clients will find the courts on their side in regard to reducing the time and cost associated with comprehensive discovery demands as long as they have the documented systems in place to back their position.

From Tracey Stretton, Legal Consultant at Kroll Ontrack 

Given the hyperflow of electronic business communication it is no longer practical to produce evidence in litigation or investigations without the support of technology.  The rise of  mobile computing and social networking means that less formal business communications will need to be considered and will add to the challenges of e-disclosure.  Virtualisation and cloud computing will add to the complexity of the process of identifying relevant evidence.   

Specialist technical expertise and technologies will be required to map the data landscape and extract the data required with surgical precision.  Early case assessment technologies will become essential to provide lawyers with early visibility of data and shape the selection and filtering process. These technologies will evolve and make it easier for lawyers to prioritise and read the important documents faster with less human effort.  This is essential to keep litigation costs in check.