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Septembre 6, 2019 News

Role of technology in evidence disclosure obligations set to grow in England and Wales

Integreon gathers expert panel at recent legal services event in Bristol to discuss future of eDiscovery

6 September, 2019 – Bristol, UK – Such has been the increase in electronically stored information (ESI), litigators and the judiciary are having to reassess the manner in which document disclosure and analytics are handled. The Disclosure Pilot Scheme, currently running in the Business and Property Courts of England and Wales, represents a major step forward in this area. However, eDiscovery is not a regulated profession and has no standard qualification or approach to managing documents or electronic records. At a recent event in Bristol, UK, Integreon, a leader in global alternative legal and business services, brought together a team of experts to discuss developments in the field and to share best practice advice.

The panel discussion ‘eDiscovery, technology and the judiciary’ was held on 26 June 2019 in Bristol and was moderated by independent expert, Chris Dale of the eDisclosure Information Project. The panelists were: Mark Brannigan, Vice President EMEA, Aon; Nicola Woodfall, eDiscovery Manager, Travers Smith; Emily Wyllie-Ballard, eDiscovery Manager, RPC; Vince Neicho, Vice President of Legal Services, Integreon; and Clare Chalkley, Vice President – Legal Services, Integreon. The session centred on a presentation the panel had given to the Judicial College at the University of Warwick and featured a high level practical examination of the Disclosure Pilot.

Where legal meets technology

It’s no secret that the sheer volume of electronic communication creates challenges for litigators under the UK’s longstanding Standard Disclosure rules. In addition to the thousands, sometimes millions, of emails and e-files that can be typical in disclosure, there is a potentially greater source of evidence to be found in text messages, WhatsApp communications, social media, audio files and various chat platforms. Social media is a potentially rich source of evidence, but one that is often ignored. Typically, such records are not stored centrally, employ different formatting systems or sit on personal devices, prompting both privacy and accessibility concerns.

With the sheer volume of ESI to potentially consider, gather and analyse, and the costs associated with disclosure spiralling, it is clear that litigators require a new framework in which to work. This should be one which allows disclosure obligations to be met whilst offering alternative, and hopefully more time and cost efficient methods of doing so. The Disclosure Pilot Scheme, currently running in the Business and Property Courts of England and Wales builds upon the previous Practice Direction, PD31B and attempts to address this. It also bolsters the requirement for litigators to give careful consideration to the use of technology to expedite and reduce the cost of disclosure exercises. In almost all cases, parties will be expected to use technology, ranging from e-mail threading, through to predictive coding (where appropriate).

“Judges are also required to take more of a lead in this area under the pilot scheme,” as Integreon’s Vince Neicho, who formed part of the Judicial Working Group that drafted Practice Direction 31B, explained at the event. “There’s nothing more sure to run up costs than telling legal teams to ‘go sort it out’, or ‘just hand it over anyway’”. For this reason, judges are beginning to take a more active role dictating the scope of eDiscovery; thereby ensuring that costs and effort is proportionate to the matter at hand.”

“However drastic the new rule may appear to some, it is in fact a logical culmination of a series of developments going back to 1999,” commented moderator and eDiscovery expert Chris Dale. “Rule changes since then have focused on the need to prepare in time, the obligation to discuss proposals with opponents, the need to be proportionate, and the need to involve the court by explaining what is proposed and being in a position to argue for one course rather than another. However, this is the first time the rule changes have focused so strongly on the benefits of technology. The present rule leaves everyone – lawyers, clients and judges – in no doubt that they must show that they have considered the use of technology and must effectively explain why they have not done so.”

Cost saving beyond technology

While the wording of the pilot focuses on the requirement to use technology to save costs, adoption of such technologies can also aid in levelling the playing field for smaller firms. So too can the use of outsourced document review services offered by alternative legal service providers (ALSPs) such as Integreon. “When approaching eDiscovery through  the well-established principle of ‘People, process, technology’, outsourced document review represents a significant time and cost-saving opportunity,” commented Integreon’s Clare Chalkley, drawing on her experiences heading up the eDiscovery and Case Management team at multinational law firm Clifford Chance. It gives firms access to specialist resources, while focusing lawyer effort on what they do best.

About Integreon

Integreon is a trusted, global provider of award-winning legal and business solutions to leading law firms, corporations and professional services firms. We apply a highly trained, experienced staff of 2,400 associates globally to a wide range of problems that require scale and expertise, enabling clients to become more operationally efficient by streamlining operations, maximizing investment and improving the quality of work they provide their end clients. With delivery centers on four continents, Integreon offers multilingual, around-the-clock support, as well as, onshore, offshore and onsite delivery of our award-winning services. For more information about Integreon’s extensive range of services, visit www.Integreon.com and follow Integreon at LinkedIn, Twitter and Facebook.

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