6 | KROLL ONTRACK | Report

The United Kingdom is the second most established market for ediscovery services, after the United States. There is a high degree of familiarity with ediscovery in the United Kingdom because edisclosure is a formal stage of the litigation process. Putting technology aside, effective working relationships between law firms, clients and ediscovery providers are crucial to ensuring a successful case.

How are ediscovery practices in the United Kingdom different from neighbouring countries or the United States?Unlike many of its European neighbours, the United Kingdom, has had edisclosure form part of its Civil Procedure Rules for over a decade. During that time, practical know-how regarding ediscovery technology has spread beyond litigation, so most lawyers are comfortable with the advantages a full analysis of electronic evidence can bring to their case. Edisclosure is nevertheless narrower in the United Kingdom than it is in the United States and there has been an emphasis on proportionality for a longer time.

What barriers exist to using technology for the discovery of data?Nowadays, ediscovery technology is fairly essential to enable lawyers to get to critical case data. Data privacy issues and large data volumes are both common challenges that would be very difficult to overcome without ediscovery technology.

Client perceptions of necessity and cost are additionally significant obstacles. Lawyers are expected to be versatile in their practice of the law and they need to be commercially adept when explaining why ediscovery technology and services might be needed. To do this, lawyers have developed expertise in matters such as information security, data hosting, database management, and of course, all aspects of the Ediscovery Reference Model (EDRM).

Who is using ediscovery technology? How are they using it?Multinational corporations have extensive knowledge of ediscovery best practices. Many maintain their own platforms in readiness to filter data and avoid sending data to outside providers as much as possible. The larger, more complex cases may be outsourced to external experts in order to gain additional capacity or for strategic reasons, such as to avoid bias in any investigation.

Stakeholders in these organisations include IT, compliance, legal teams and information security, to name only a handful.

England: Land of Hope, Glory and Electronic Evidence

Legal System: Common law

Applicable Rules: Civil Procedure Rules (Part 31 and associated Practice Directions)

Ediscovery Practices: Edisclosure is well practised. Judicial decisions on keywords, proportionality and predictive coding have been handed down over the past decade.

At a Glance

NEW FRONTIERS IN EDISCOVERY | 7

Larger organisations which are more litigious and highly regulated, such as financial and pharmaceutical businesses, tend to employ internal investigators who are using the latest technology on a daily basis.

How are data protection and privacy laws impacting ediscovery?Global law firms are often faced with cross-border discovery, which comes with the significant challenge of transferring data across borders to countries where different rules and regulations apply. This is not a perfect science. Lawyers give guidance on local data protection and privacy laws, but finding a path through often conflicting regulations is not easy.

Complying with local data protection and privacy rules in all territories is critical. Whilst the United Kingdom is considered less strict than, say, Russia and China, the General Data Protection Regulation (GDPR) might change this. The impending ‘Brexit’ is expected to have some impact on the way that data is handled for disputes and investigations in the United Kingdom. In the midst of this uncertainty, it seems sure that there will be more scrutiny on the holding of personal data and more fearsome penalties for mishandling personal data in the future.

On a more day-to-day level, one privacy issue that can affect ediscovery is caused by the trend towards Bring Your Own Device (BYOD). By its very nature, the lines between personal and corporate information are blurred when an individual is using their own device for work purposes. Should the device be needed in an investigation or a case, rigorously separating personal information from data relevant to a matter can be time-consuming and consequently, expensive.

It is also interesting to note the rise of subject access requests. The Data Protection Act 1998 in the United Kingdom grants individuals a right of access to personal data which may be held about them. Such requests cause companies to embark on sometimes extensive searches, depending on what information is requested. These are occurring so frequently now (and possibly as a method of pre-action disclosure) that the respondents inevitably need ediscovery assistance to complete the search.

What best practices are recommended for conducting ediscovery in the United Kingdom?Supporting disputes and investigations requires a variety of skills. Consequently, support is often delivered by collective teams, making teamwork an emerging

best practice. Disclosure and regulatory deadlines must be met in a well-ordered and timely fashion. The urgency and precise requirements of ediscovery cases carry a high degree of risk, so ‘getting it right’ calls for expertise, care and coordination, as well as responsive support. For this reason, practising ediscovery is as much about the people you work with, as it is about the technology you use.

Value for money is paramount. Anything which can be done to carve out irrelevant data before it is reviewed creates a differentiator, for lawyers as well as ediscovery providers.

On the use of technology, companies are interested in taking a more surgical approach to data selection. Instead of using keywords, review platforms offer analytical tools that can reveal more about the data, helping to provide a better understanding of who was involved, how they communicated and the words they actually used. In medical terms, this level of sophistication is akin to keyhole surgery, as opposed to older and cruder methods.

Ediscovery technology can be used to perform proactive checks on employee behaviour. The checks can be broad or very narrow, but regular checks increase the chances of uncovering misconduct and reduce the risk of incurring fines at the hands of a regulator.

There is also a reasonably high expectation on companies to ensure they can locate data easily. This means understanding how they create data, what they keep, what they destroy and where it resides in their organisation.

Keeping up to date with ediscovery market developments is another new ‘best practice’. The United Kingdom has a competitive ediscovery industry, so being able to quickly select the right provider for a quantifiable advantage (such as local presence, or a particular technology) is of tremendous benefit.