From the US to Canada the UK and Australia, the costs of litigation in common law jurisdictions are under unprecedented judicial and commercial scrutiny.
In the current economic climate, companies do not have excess money to burn on litigation costs, while in the courts a series of judgments has penalised profligate litigants on costs where expenditure on discovery has escalated out of proportion.
Meanwhile, in the UK, forthcoming implementation of the Jackson Review of civil litigation costs promises a further tightening of judicial attitudes towards cost awards when it is implemented next year.
The balancing act for litigants is to ensure they find and disclose relevant documents without missing vital evidence, while ensuring that the cost of doing so does not become prohibitive. But when the use of electronic communications means the number of business documents continues to grow exponentially, that is easier said than done.
Where’s the data?
The key to keeping the cost of discovery down is to reduce the number of documents that need to be assessed by human reviewers. In this regard, search technology can be invaluable, but the single most important factor in ensuring an efficient discovery exercise is to know where the data is, and which parts of it are most likely to be relevant.
This process – called data mapping – can significantly cut the time taken to identify and search potentially relevant information and is best undertaken before the need arises. Indeed, it could be argued that having a clear idea of what information an organisation holds – and where it is – is good corporate governance practice as well as ensuring your business is prepared for any litigation.
This is more important than ever as the range of devices (BlackBerrys, iPads, iPhones) and formats (emails, text messages, and voicemails) in which potentially important documents could be stored continues to grow.
These days, a ‘smoking gun’ can turn up in all sorts of places and a firm handle on what is likely to be where is essential if nasty surprises are to be avoided.
Once litigation is under way, it is essential the parties agree on the scope of the discovery exercise. Depending on the jurisdiction – and the attitude of the judge – this may or may not be a formal part of the process, but in all cases, the judgement to get right is the one between the likelihood of useful documents being found and the cost of finding those documents.
Having a good overview of data will make this task much simpler, as well as making decisions easier to justify in the event of a costs challenge. Once the scope has been agreed, the search begins. At this stage, technology can make inroads into the time and expense taken to find relevant documents. Generally speaking, the more of this process that can be automated, the less the final bill for the exercise.
E-discovery systems have long deployed keyword searching to identify potentially relevant documents, and discard irrelevant ones, thereby reducing the time spent on manual review.
Greater efficiencies can be achieved through analysing the results of an initial keyword search and refining the search terms so the relevancy of the documents produced is higher.
Keyword searches can be augmented by a range of ‘review accelerators’ that can significantly speed the process and reduce the human element of a search exercise. These include identification of similar or related documents (for example, chains of emails or subsequent versions of the same document) so they can be reviewed simultaneously rather than individually.
Cutting-edge techniques such as technology-assisted review or ‘predictive coding’ are now becoming more widespread. This technology will analyse a sample set of reviewed documents and apply similar issue codes to the wider review set. Weighting documents by virtue of their possible relevance based on a defined set of issues can enable lawyers to prioritise them for review, streaming more relevant documents to the lawyer teams and those potentially less relevant to paralegals.
Again, the more litigation-ready the information, the more efficient the process will be, whatever the technology. Moreover, the earlier that a business is in possession of the facts, the easier it is accurately to evaluate the strength of a position and make decisions on whether to fight on or seek settlement.
Ensuring that information governance policies are litigation-ready is not an inexpensive exercise, but it is one that promises to pay dividends.
Adrian White is a senior consultant at global computer forensic specialists First Advantage Litigation Consulting