Courts in many jurisdictions are seeking to significantly reduce the scale and expense of  e-Disclosure exercises and enforcing large penalties on those who fail to keep track of costs. A recent example of this is Practice Direction 31B in England and Wales, which imposes strict timetables on the parties to complete the e-Disclosure process and threatens to impose adverse costs orders on those that fail to comply. Increasing use of encryption technologies and the widespread adoption of cloud computing is frequently making accessing and managing data more difficult. The global nature of e-Disclosure leads to further challenges as data protection and privacy laws become a mine field in some jurisdictions.  

Multiple e-Disclosure skillsets required

The greater focus on the scale and cost of e-Disclosure projects is driving the adoption of technological review accelerators to reduce the size of the document set being sent for manual review. The document review stage is the biggest single cost of an e-Disclosure project and this is also leading to many reviews – where possible for data protection reasons - being outsourced to offshore jurisdictions such as India, where review can be undertaken by legally-trained professionals such as contract attorneys at a fraction of the cost.

Trends such cost controls, multi jurisdictions and larger data are making the successful execution of e-Disclosure projects more challenging than ever and the range of skills required to manage those processes is widening.  So which specialist skillsets are required for anybody working on an e-Disclosure project?

The growth in document volumes means that high-level IT and information security experience will increasingly be required. At the same time, the additional legal challenges created by changes to information legislation mean that legal input is often required of the e-Disclosure process. Moreover, the globalisation of legal disputes and regulatory inventions mean that additional language skills are frequently needed. 

Given the range of issues that need to be addressed and the professional expertise that needs to be applied, it is becoming almost impossible to deliver e-Disclosure projects cost-efficiently and accurately without expert planning and oversight.  Consequently, project management is emerging as the key skill in the current environment. 

The importance of project management

The changing nature of the e-Disclosure process is also having an effect on the 'make versus buy' decision of law firms ie the decision about whether to base the project in-house or outsource it to a specialist service provider. Retaining a project in-house enables the lawyers to keep a firm eye on the progress of a project as well as remaining close to the client throughout, potentially increasing the profitability of cases by saving on service providers' margins.  However, this also can potentially lead to a risk of providing the end client with a subpar service because of the lack of specialised and up-to-date skillsets within the typical e-Disclosure support team.

Conversely, outsourced providers will often be better equipped to deal with the technical and infrastructural issues and demands that arise from complex projects, therefore can intelligently offer and outsource elements to keep costs to a minimum.  It is an essential skill for a project manager to be as consultative as possible, not work in silos and be ‘hands-on’ from the get-go.   

The market direction is unclear at present. Some legal firms are insourcing e-Disclosure and building the infrastructure needed to process and host data. Others, however, that have tended to keep such projects in-house are moving towards outsourcing. The lack of an obvious direction of travel is symptomatic of the complex range of issues involved in the 'insourcing vs outsourcing' conundrum.

Indeed, the future is likely to see the decision become less of a binary one. As the range of professionals required grows, the respective skills brought to the process by both law firms and e-Disclosure service providers are increasingly complementary and will need to be applied in tandem. Whichever route is taken for a particular project, it is worthwhile having a discussion with a specialist service provider at the outset in order to efficiently plan what the required level of resource and expertise for the project will be and potential issues that are likely to arise. 

Ramin Tabatabai is Senior Consultant CIIT (Compliance, Intelligence, Investigations and Technology) at Control Risks. Ramin.Tabatabai@controlrisks.com.Christopher Morris is Project Manager, CIIT (Compliance, Intelligence, Investigations and Technology) at Control Risks.Christopher.Morris@controlrisks.com. For further information visit www.controlrisks.com